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Class 

Book- 



THE 



POWER OF CONGRESS 



TO PUNISH 




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OF PRIV1LEG 



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BY 



CHAELES P. JAMES, 

Of the Washington Bar. 



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WASHINGTON, D. C: 

W. H. & O. H. MORRISON. 

187 9. 





, 5.3 



"The powers of the legislature are defined and limited; and that 
those limits may not be mistaken or forgotten, the Constitution is 
written. To what purpose are powers limited, and to what purpose is 
that limitation committed to writing, if these limits may, at any time, 
be passed by those intended to be restrained ?"— Chief Justice Marshall, 
in Marbury vs. Madison, 1 Cranch, 137. 



Copyrighted, 1879, 
By W. H. & O. H. Morrison. 



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THE POWER OF CONGRESS TO PUNISH CONTEMPTS 
AND BREACHES OF PRIVILEGE. 



I. 

A doubt has never ceased to exist in the minds of 
many lawyers, notwithstanding the decision in Ander- 
son vs. Dunn, 6 Wheaton's Rep., 204, whether general 
power to adjudicate and inflict punishment for con- 
tempts and breaches of privilege, has been vested by 
the Constitution in the Senate and House of Repre- 
sentatives of the United States ; and expressions of 
this doubt have been revived as often as any notice- 
able instance of its exercise has attracted attention. 

It has been felt that a claim of power affecting per- 
sonal liberty, which is not referred to by any word in 
the Constitution, but is based wholly upon an impli- 
cation from nect^-dty, stands upon grounds which are 
uncertain ; and that it has not been rendered un- 
questionable even by long usage. A candid inquiry 
into the sufficiency of these grounds seems, therefore, 
not to be improper, or to come too late. It is hoped 
that the following discussion preserves that character. 
And it should be added, that such an inquiry recog- 
nizes the necessity that these offenses should be pun- 
ished ; it proposes nothing more than a consideration 
of the provisions which the Constitution has made for 
that purpose. It is incumbent upon any person who 



4 — 



questions a power which assumes to be settled by 
authority and practice, to exhibit at the outset, as 
fully as possible, the argument in its behalf. Instances 
of its exercise showing how early they began, and the 
reasoning by which they have been vindicated, will 
therefore be now presented. 

On the 28th of December, 1795, upon information 
given by several members in their places, of an attempt 
made by one Robert Randall to corrupt them, the 
House of Representatives directed the Speaker to 
issue his warrant of arrest, and on the next clay Ran- 
dall was taken in custody. He was detained until the 
6th of January, when the House, by a vote of seventy- 
eight to seventeen, came to the following resolution : 
That it appears to this House that Robert Randall 
has been guilty of a contempt to and a breach of the 
privileges of this House, by attempting to corrupt the 
integrity of its members in the manner laid to his 
charge." And thereupon it was resolved : " That the 
-aid Robert Randall be brought to the bar, repri- 
manded by the Speaker, and committed to the custody 
of the Sergeant-at-Arms, until the further order of 
this House." Pursuant to this resolution, Randall 
was brought to the bar, reprimanded, and remanded 
to the custody of the Sergeant, by whom he was de- 
tained until the 13th of January, when he was dis- 
charged by order of the House on payment of fees. 

Five years later, in March, 1800, occurred the case 
<>f William Duaiic. A bill had been introduced in 
the Senate by Ross, of Pennsylvania, prescribing the 
mode of deciding disputed elections of President and 
Vice-President, of which the principal feature was the 



5 



appointment by ballot of a joint committee of both 
bouses, with power to decide absolutely on the valid- 
ity of any objections to any of the electoral votes. In 
reference to this bill, Duane had charged in the 
Aurora, a newspaper published in Philadelphia, that 
it was got up by a secret caucus of Federal Senators, 
who controlled all the proceedings of that body, with 
the design to deprive Pennsylvania of her vote at the 
ensuing presidential election. The Senate, upon the 
report of a committee of privileges, to whom this 
publication had been referred, resolved that it con- 
tained " assertions and pretended information, respect- 
ing the Senate and their proceedings," " false, defama- 
tory, scandalous, and malicious, tending to defame the 
Senate, and to bring them into contempt and dis- 
repute, and to excite against them the hatred of the 
good people of the United States, and that the said 
publication was a high breach of the privileges of the 
Senate." Having appeared at the bar in obedience to 
a summons, Duane asked permission to be assisted by 
counsel, which was granted, with the limitation that 
they should be heard only as to such questions of fact 
as might arise, or in excuse or extenuation of his 
offense. Dallas and Thomas Cooper, to whom he ap- 
plied, declined to act as counsel, since they were not 
to be allowed to dispute the constitutionality of the 
proceeding. Duane, claiming that he was deprived, 
under the restrictions which the Senate had seen fit 
to impose, of all professional assistance, declined any 
further voluntary attendance upon that body ; and 
the Senate voted that he was guilty of contempt in 
refusing to appear ; directing the Sergeant-at-Arms 
to arrest him, and to hold him in custody until further 



6 



orders. Hildreth's Hist, of the U. S., Vol. 2, p. 352, 
2d Series. 

This proceeding of the Senate performed substan- 
tially the office of an ordinary prosecution for libel, 
and their formally expressed resolution had, to a re- 
markable degree, the ring of an indictment. 

In January, 1818, another attempt to corrupt its 
members was brought to the attention of the House 
of Representatives. A member in his place informed 
the House that John Anderson had attempted to bribe 
him, with a view to influence his action on certain 
claims then pending there. Upon an unanimous vote 
the Speaker issued his warrant, Anderson was taken 
into custody, and was subsequently brought to their 
bar from time to time, as directed, until finally, on 
the 16th of January, the House came to the following 
resolution : " That John Anderson has been guilty of 
a contempt and a violation of the privileges of the 
House, and that he be brought to the bar of the 
House this day, and be there reprimanded by the 
Speaker for the outrage he has committed, and then 
discharged from the custody of the Sergeant-at-Arms." 

( )n the 14th of April, 1832, the Speaker laid before 
the House of Representatives a communication from 
a member, stating that on the evening of the previous 
day he had been attacked, knocked down by a blud- 
geon, and severely bruised and wounded by Samuel 
Houston, for words spoken in his place in the House. 
Thereupon, the usual warrant was issued, and Houston 
vrafi takes in custody by the Sergeant-at-Arms. On 
the 1 1th of May, it was resolved by the House : " That 
Samuel Houston has been guilty of a contempt and 
violation of the privileges of this House;" and on 



■ — 7 — 

the same day the House passed a further resolution : 
" That Samuel Houston be brought to the bar of the 
House on Monday next, at twelve o'clock, and be 
there reprimanded by the Speaker for the contempt 
and violation of the privileges of the House of which 
he has been guilty, and that he be discharged from 
the custody of the Sergeant-at-Arms." 

In March, 1848, John Nugent was summoned to 
appear at the bar of the Senate as a witness ; and, 
having appeared, he was sworn, but refused to answer 
certain interrogatories then propounded to him. For 
this reiasal, he was adjudged to have committed a 
contempt against the Senate, and was ordered into 
the custody of the Sergeant-at-Arms, there to remain 
until the further order of the Senate. 

In January, 1857, J. W. Simonton was summoned 
as a witness before a select committee of the House of 
Eepresentatives, appointed to investigate charges that 
members of that House had entered into corrupt 
combinations for the purpose of securing the passage 
of certain measures by Congress; and during the 
progress of the investigation, certain questions were 
propounded to him, which he declined to answer. 
The committee reported this fact to the House, the 
Speaker was ordered to issue his warrant, and Simon- 
tori was immediately brought in custody to the bar. 
After he had been heard in his own defense, the 
House passed the following resolution: " Whereas, 
J. W. Simonton having appeared at the bar of the 
House, according to its order, and the cause assigned 
for the said contempt being unsatisfactory, therefore — - 
Resolved, That the said J. W. Simonton be con- 
tinued in close custody by the Sergeant-at-Arms, or, 



— 8 — 

in his absence, by Mr. William G. Flood, during the 
balance of this session, or until discharged by the 
further order of the House, to be taken when he shall 
have purged the contempt on which he was arrested, 
by testifying before the committee." 

It is unnecessary, however, to set out all of the 
instances of the exercise of this power. Enough have 
been cited to show the kind of acts to which it has 
been held by the two houses of Congress to extend, 
and the manner of its use. It is proper, next, to 
state the arguments by which the power has been 
supported. 

In Duane's case, notwithstanding counsel were not 
allowed to discuss the constitutionality of the Senate's 
proceedings, it was very fully discussed by senators 
themselves. A brief abstract of the debate has been 
preserved by Mr. Jefferson (Manual, Sec. 3). He 
says : "In declaring the legality of this order, it was 
insisted, in support of it, that every man, by the law 
of nature, and every body of men, possesses the right 
of self-defense ; that all public functionaries are essen- 
tially invested with the powers of self-preservation; 
that they have an inherent power to do all that is 
necessary to keep themselves in a condition to discharge 
the trusts confided to them ; that whatever authorities 
are given, the means of carrying them into execution 
are given by necessary implication ; that thus rve see 
the British P<trliament exercising the same poiver; and 
every court does the same; that if we have it not> we 
sit at the mercy of every intruder who may enter our 
doors or gallery, and, by noise and tumult, render 
proceeding in business impracticable; that if our 



— 9 — 

trar be perpetually disturbed by news- 

pap ( it will not be possible to exercise 

our functions wic the requisite coolness and deliber- 
ation ; and we must therefore have a power to punish 
those disturbers of our peace and proceedings." 
. The commitment of John Anderson, in 1818, was 
followed by an action against the Sergeant-at-Arms 
of the House of Representatives, for assault and 
battery and false imprisonment, and at last the power 
to punish for contempt became the subject of judicial 
determination. Anderson vs. Dunn, 6 Wheaton, 204. 
(1821.) 

The defendant pleaded specially, in justification, a 
resolution and a warrant, which set forth, in general 
terms only, that the plaintiff had been guilty of a 
breach of the privileges, and of a contempt of the 
dignity and authority of the House of Representatives. 
The legal effect of a mode of pleading which thus 
omitted to state the nature of the contempt, and 
whether it was committed in presence of the House 
or elsewhere, was to set up a power to punish con- 
tempts generally; and this claim was conceded by 
the decision of the Court. 

Mr. Justice Johnson, delivering the opinion of the 
Court, said: "It is certainly true, that there is no 
power given by the Constitution to either House to 
punish for contempts, except when committed by 
their own members. * * Such power, if it exists, 
must be derived from implication." He then pro- 
ceeded to state the reasons of the Court for imply- 
ing it. 

Briefly stated, his argument was, that the power to 
punish this class of injuries belonged to those bodies 



— 10 — 

ex necessitate, " on the principle of seif-pr ration." 
And he proceeded to say : " In reply to cue suggestion 
that, on this same foundation of necessity, might be 
raised a superstructure of implied powers in the 
executive, and every other department and even 
ministerial officer of the Government, it would be 
sufficient to observe, that neither analogy nor 'prece- 
dent would support the assertion of such powers in 
any other than a legislative or judicial body?' 

It was conceded in this opinion that no executive 
officer could assume and exercise the power of punish- 
ment, "on the principle of self-preservation ; ' : and it 
was clearly held that a legislative assembly might 
assume and exercise it on that principle, because it 
had been determined by precedent to be "necessary" 
to such bodies as a means of self-preservation. 

Mr. Justice Johnson's language did not, it is true, 
assume the form of an explicit statement of doctrine ; 
but the inevitable effect of his position was, that each 
house of our Congress was invested by the Consti- 
tution with power to use, for the purpose of self- 
preservation, whatever means the common laiv had 
determined to be necessary to that end in the case of 
legislative assemblies, and that the common law had 
determined the power to punish obstructors to be 
necessary to such bodies. If his language should 
seem to leave any uncertainty on this point, it should 
be remembered that Mr. Justice Story, who also sat 
in that case, evidently intended, in his Commentary, 
to give the same reasons which had prevailed in 
Anderson vs. Dunn; and his argument clearly sup- 
ports this view of the case. He says : " Congress are 
required to exercise the powers of legislation and 



— 11 — 

deliberation. The safety of the rights of the Nation 
requires this ; and yet, because* it is not expressly said 
that Congress shall possess the appropriate means to 
accomplish this end, the means are denied and the 
end may be defeated. * * * * We may resort 
to the common law to aid us in interpreting such 
instruments and their powers ; for that law is the 
common rule by which all our legislation is inter- 
preted. It furnishes principles equally for civil and 
criminal justice, for public privileges and private 
rights. Now, by the common law, power to punish 
contemps of this nature belongs incidentally to courts 
of justice and to each house of Parliament. No 
man ever doubted or denied its existence as to our 
colonial assemblies in general, whatever may have 
been thought as to particular exercises of it." Story 
on the Con., Sees. 845, 846. 

It is a very grave matter to question the legality of 
a practice which has continued from the earliest days 
of the Constitution to the present time, and the con- 
clusiveness of the great authorities by which that 
practice has been supported. 

If the question had related to the interpretation of 
particular terms in the Constitution, or to the extent 
of any express grant of power, early and long con- 
tinued practice would, without the help of judicial 
decisions, have been conclusive. And if the grounds 
on which the power was rested by the decision referred 
to, had not, since that time, been re-examined by the 
tribunals of the country from which this doctrine has 
confessedly been borrowed, and been shown not to have 
been the basis on which it stood in England, nor to 



— 12 — 

have constituted a general conclusion as to legis- 
lative assemblies, and to be therefore incapable to 
support the assumption of such power by any other 
legislative assemblies than the houses of Parliament, 
the question here discussed would have been regarded 
as closed by judicial authority. But, inasmuch as this 
claim of power has been based, not upon the interpre- 
tation of phrases, but upon general principles which 
are independent of forms of expression, and of any 
express grant, it is conceived that long practice is not 
conclusive. And inasmuch as the question which 
came before the English tribunal was substantially 
identical with the question considered in Anderson vs. 
Dunn, and has been differently decided, after the most 
deliberate reconsideration, it is hoped very sincerely 
that there is no disrespect to our own great tribunal 
in examining the argument as a question fairly open 
to discussion. As the result of such an examination 
it is proposed, in the following remarks, to show : 

1st. That on general principle, the power to punish 
contempts cannot be implied as a power of self-pro- 
tection, in the case of a legislative assembly. 

2d. That the power of the House of Commons to 
punish for contempts does not stand upon the ground 
that it is necessary to a legislative assembly, as a power 
of self-protection ; and that its exercise by that body 
never established a conclusion of the common law that 
such a power was necessary to legislative assemblies. 

3d. That if such a conclusion of the common law 
had existed, it would have been of no force in deter- 
mining whether a similar power has, by implication, 
been granted to each house of our Congress. 

4th. That, if such an implication might have been 



— 13 — 

made on that ground, in the absence of any provision 
of the Constitution forbidding it, that implication has 
in fact been forbidden by affirmative provisions of that 
instrument. 

We have first to consider the general principle on 
which the right of a party to take measures against 
other persons, for the purpose of self-protection, is 
based. The following is submitted as an analysis of 
that principle. 

The possessor of a right, whether a private person, 
a functionary, or a body of functionaries, is entitled 
to its complete enjoyment, and is therefore entitled to 
have, in some way, remedies of protection adequate to 
secure such enjoyment. It is a principle of social 
organization that, primarily, the duty and power to 
provide remedies of protection belong to the organiza- 
tion itself, as sovereign over all its constituents ;. and 
does not belong to any of its constituents except with 
its consent. . 

Whether such primary power has been transferred 
to, and may be exercised by any person or body of 
persons subject to the sovereignty, is simply a ques- 
tion of fact ; and the fact of transfer or permission may 
be either expressed or implied. An implication that 
it may be thus exercised may be made on the following 
grounds : In order to secure complete enjoyment of a 
right, there must be remedies adapted to secure it from 
interruption or obstruction even for a single moment ; 
that is to say, from being injured at all. A function- 
ary or body of functionaries is entitled, therefore, to 
remedies which shall instantly put a stop to an ob- 
struction which is occurring, or actually and directly 



— 14 — 

prevent one that is threatened. For example, they are 
entitled to have persons who are obstructing their 
functions at once removed, and to have persons who 
menace such obstructions excluded. But, to require 
a functionary who is suffering an obstruction, or who 
is likely to be interrupted, to invoke, for this kind of 
protection, an external interference, would be to re- 
quire him to suffer the obstruction meantime, until 
that interference could be brought into action ; and 
would therefore be to deny him an adequate remedy. 
Indeed, to just the extent of such enforced endurance, 
his right not to be injured at all would be without any 
remedy. Since, then, he is entitled to a remedy which 
shall instantly arrest or perfectly prevent the injury, 
and since his own hand can furnish that remedy while 
no other agency can, it follows that the party himself 
is authorized to provide and apply remedies of this 
kind. His right to do so is implied from two facts: 
.that he is entitled to an instant cessation of injury ; 
and that the law which established him as a function- 
ary, cannot in any other way furnish him a remedy 
adequate to that end. In other words, his authority 
arises ex necessitate. 

In illustrating this right by example, we have ad- 
duced a case in which it accrues because remedies from 
an external source arrive too late. It is conceded, 
however, that the principle is broad enough to include 
cases where the only remedies which the law is capable 
of applying by an external agency, are, in contempla- 
tion of law, inadequate for any other reason. The 
probability of such cases is a matter which it is not 
necessary to determine. We shall therefore proceed 
upon an assumption that the right of self-protection 



— 15 — 

stands upon the ground, that the remedy to which the 
party is entitled cannot be furnished or applied ad- 
equately in any other way. 

The principle here stated is relied upon because it is 
found in every civilized system of jurisprudence, and 
is not peculiar to the common law. In that law itself 
it is enunciated as a principle of universal recognition. 
Blackstone, in speaking of the right of self-defense, 
says : " It [the law] considers that the future process of 
law is by no means an adequate remedy for injuries 
accompanied by force ; since it is impossible to say to 
what wanton lengths of rapine or cruelty, outrages of 
this sort might be carried unless it were permitted a 
man immediately to oppose one violence with another. 
Self-defense, therefore, as it is justly called the primary 
law of nature, so it is not, neither can it be in fact, 
taken away by the law of society." 3 Bl. 4. And in 
speaking of the right of a party to abate certain kinds 
of nuisances, he says : " The reason why the law allows 
this private and summary method of doing one's self 
justice, is because injuries of this kind, which obstruct 
or annoy such things as are of daily convenience or 
use, require an immediate remedy, and cannot wait 
the slow progress of the ordinary forms of justice." 

And Kent says : " The municipal law of our own 
country, as well as of every other country, has left 
with individuals the exercise of the natural right of 
self-defense, in all those cases in which the law is either 
too slow or too feeble to stay the hand of violence." 2 
Kent, 15. 

Since this principle is of universal authority, it must 
apply to functionaries under our Constitution, and 
must determine the extent of their power to use 



— 16 — 

measures of self-protection in the discharge of their 
functions. 

It is important, before proceeding to apply it to the 
matter in question, to recapitulate the elements which 
unite in constituting the right to do any particular 
act for the purpose of self-protection. 

As shown by the recognized operation of the princi- 
ple, they are as follows : 

First, the act to be done for that purpose must 
operate immediately and directly upon the injury 
against which protection is sought $ being permitted 
on the very ground that it is necessary as the only 
means of actually saving the party from being injured 
at all. Secondly, it must appear that it is his in- 
herent right that the particular act which he under- 
takes to do, should be clone by some agency. Thirdly, 
it must appear that this remedy cannot be applied 
adequately by any other hand than his own ; in other 
words, that there is a necessity, in contemplation of 
law, that he shall have power to apply it himself. 

Assuming these to be the elements of the principle 
of self-protection, we have next to consider whether 
power to punish comes within that principle. 

It is obvious, in the first place, that punishment 
has no direct action upon injuries, whether past or 
future. It does not pretend to undo the past injury 
on account of which it is inflicted ; it has regard only 
to the future, and to possible injuries. But, even as 
to these, it is only an abuse of words to call it a pre- 
ventive, in the sense required by the principle of 
self- protection. Undoubtedly it is characterized in 
the language of social science as a preventive of 
wrongs ; but it is not regarded even by that science, 



— 17 — 

much less by the law, as having any direct operation 
toward that end, or any intrinsic capacity to attain it. 
Its only direct operation is to give warning ; to teach 
a lesson ; and that lesson may, or may not, have 
the secondary effect of diminishing the disposition 
of wrong-doers to commit injuries. Self-protective 
remedies are permitted on the ground that they are 
necessary to the actual saving of the party from being 
injured; but the capacity, even the tendency of 
punishment to avert injuries, depends upon the im- 
pressionability, the imagination, the audacity, the 
intelligence, of the persons who are to be warned and 
instructed by it. It may be inflicted without even 
touching the result that was hoped for ; and the end 
proves that its office is not actual prevention. Since, 
then, it operates upon something else than the injury, 
and is only an educational instrument, calculated to 
achieve its purpose, not by necessary but only by 
probable reaction upon the inclination to injure, and 
thereby upon the injury itself, it cannot be deemed a 
remedy of self-protection from injury. The latter 
authorizes a party to deal with a situation, with the 
wrong which is upon him, or which is approaching ; 
all secondary methods belong to the sovereign, 
whether a monarch or a community. 

In the next place, the principle of self-protection 
requires that the party should have an inherent right 
that the particular act which he undertakes to do, as 
a remedy, should be done by some agency, either 
public or private ; and it is not an inherent right of 
an injured party that any particular injury should be 
punished. Whether a particular kind of injury shall 
be subject to any punishment, and if so in what 

3 



— 18 — 

manner, is essentially a matter of polity, of public 
discretion ; not a matter upon which there can be a 
foregone conclusion of law. There are very many 
injuries for which every society deliberately omits to 
provide any punishment. We have a peculiarly ap- 
propriate illustration of this discretion, in the fact to 
which we shall have occasion to refer in another part 
of this discussion, that Congress has abolished all 
punishment for certain injuries which were once 
punished as contempts of the judicial power of the 
United States. On the other hand, it is observable 
that, for those acts which are punished in all com- 
munities, the penalties have always varied in degree 
and method, according to the circumstances and 
tempers of those communities. In a word, the im- 
memorial and universal practice of mankind has 
determined that punishment waits upon the judgment 
and decision of the law-maker, and that it is not to 
be applied at all, whether by public tribunals or by 
the hand of the injured party, until the law-maker 
has prescribed the injuries for which, and the manner 
in which, it shall be applied. If then, the question 
whether a particular kind of injury shall be punished 
at all, is essentially a question of polity, of sovereign 
discretion, it is impossible that power to inflict punish- 
ment should be implied as a power of self-protection, 
accruing ex necessitate. 

Finally, power to punish cannot be claimed as a 
remedy of self-protection on the ground that this 
remedy will be, in contemplation of law, inadequate, 
unless it may be applied by the hand of the injured 

party. 

The ground on which self-protective remedies are 



19 



most commonly permitted is, that the same remedies 
applied by any external agency, must arrive too late ; 
that is, after the injury has been accomplished, or un- 
duly protracted. It is sufficient to say that the 
remedy of punishment necessarily arrives after the 
injury has been accomplished, whether it is employed 
by the party or by the common tribunals. As this 
fact is not altered by permitting the party to exercise 
the power, no necessity arises that he should be sub- 
stituted for the common tribunals. 

This somewhat elaborate analysis of the general 
principle of self-protection, which is commonly stated 
very briefly, has been deemed important, in order to 
show how many considerations must be overcome by 
a party who claims that power to punish is, in any 
particular case, a power of self-protection. A com- 
plete reconsideration of a familiar principle sometimes 
becomes necessary, for the purpose of demonstrating 
how grave a matter it is to alter its boundaries. 

It has been assumed, in making this analysis, that 
the ordinary principle of self-protection both estab- 
lishes and limits that right, just as much in the cases 
of the separate houses of Congress, as in the cases of 
other functionaries of the Government ; unless the . 
self-protective powers of the former are distinguished, 
by implications of the Constitution, from those of the 
latter. This was substantially conceded in Anderson 
vs. Dunn, and the reasoning of the Court was intended 
to establish that distinction. We have, therefore, to 
consider next, whether the Constitution does im- 
ply a greater necessity and a larger extent of self- 
protective power in the cases of our legislative 
functionaries. 



— 20 — 

It had been urged by counsel, in Anderson's case, 
that if the principles of self-preservation conferred 
the power of punishment upon the House of Repre- 
sentatives, they conferred it equally upon the " execu- 
tive, and every coordinate, and even subordinate, 
.branch of the government." Mr. Justice Johnson, 
in answer to this proposition, said : " But what is the 
alternative ? The argument leads to the total annihi- 
lation of the power of the House of Representatives 
to guard itself from contempts, and leaves it exposed 
to every indignity and interruption that rudeness, 
caprice, or even conspiracy, may meditate against it." 
So in Duane's case, it had been said by Senators: 
" If we have it not [namely, the power to punish], we 
sit at the mercy of every intruder who may enter our 
doors or gallery, and, by noise and tumult, render 
proceeding in business impracticable. If our tran- 
quillity is to be perpetually disturbed by newspaper 
defamation, it will not be possible to exercise our 
functions with the requisite coolness and deliber- 
ation." And the learned Commentator on the Consti- 
tution has declared that "It is obvious that unless 
such a power, to some extent, exists by implication, 
it is utterly impossible for either House to perform its 
constitutional functions." Story on the Con., Sec. 
845. 

If it were true that, unless the power to inflict 
punishment may be exercised by the House itself, 
neither House can perform its functions, it would be 
difficult to resist an implication that such power is 
conferred by the Constitution ; for each House must 
perform its functions. But it is submitted that the 
assertions which have been quoted are simply not 



21 



true. It can be shown, on the contrary, that, without 
assuming to themselves any such power, those bodies 
may be perfectly and adequately protected. 

In the first place, each House has, upon the prin- 
ciple of self-protection, authority to remove and 
permanently exclude persons who interrupt its pro- 
ceedings, or are guilty of indecorum in its presence ; 
and, as it may be provided with such officers as it 
may need, it may be surrounded with a force which 
cannot fail to make that power efficient. If it should 
be found necessary, it may even close its doors and 
galleries at all times against all persons but its own 
members and officers. And, as a matter of fact, this 
admitted right of self-protection has been found to be 
effective and sufficient for the suppression of every 
disorder which intruders may create. But power to 
expel and shut out an intruder is not power to punish. 

In the next place, it is not true that these bodies 
must go without that protection which punishment 
may afford, unless they may inflict such punishment 
with their own hands. It can be shown that the 
Constitution authorizes other instrumentalities by 
which any offense against them may be punished, 
and that, in contemplation of that instrument—and 
this must be the conclusive test— punishment so 
applied is adequate to their protection. 

Congress has power to pass " all laws necessary 
and proper for carrying into execution" any of the 
powers granted to any department of the government; 
and, among them, the power of its several houses to 
perform their respective functions. It is settled that 
this clause authorizes Congress to provide for the 
punishment of any wrong whatever which obstructs 



— 22 — 

or impairs the functions of any of these departments ; 
and the Constitution provides the instrumentalities 
by which such punishment may be awarded and 
inflicted. It declares that the judicial power of the 
United States shall be vested in one Supreme Court, 
and in such inferior courts as Congress may, from 
time to time, ordain and establish; and that this 
judicial power shall extend to all cases, in law or 
equity, arising under the Constitution or laws of the 
United States. Under these provisions, every act 
which the several houses of Congress have claimed 
power ex necessitate to, punish as a contempt, may be 
made an offense, and may be punished through the 
instrumentality of the courts of justice. 

That it is at least lawful to apply, this agency to 
the protection of those bodies, has not been disputed. 
It was distinctly admitted by the Court, arguendo, 
in Anderson vs. Dunn, and it has been affirmed by 
Congress itself. 

The Act of February, 1853 (10 Stat. 171), declared 
an attempt to bribe a member of either House — the 
very offense for which, under the name of contempt, 
Anderson had been punished thirty-five years before 
— to be a high crime and misdemeanor, subject to 
indictment and punishable by fine and imprisonment. 
And the Act of January, 1857 (11 Stat. 155), 
provided that the refusal of a witness, when sum- 
moned before either House, to answer questions perti- 
nent to the matter under inquiry there — an act which 
both houses assume to punish as a contempt — should 
be subject to indictment and punishable by imprison- 
ment in a common jail. 

It is a settled proposition, then, that these bodies 



— 23 



may, at least, be protected, through the agency of 
statutes and the courts of justice, against injuries 
which constitute contempts. The question is solely, 
therefore, whether this agency must be inadequate. 
And in determining this question, it is to no purpose 
to point out practical difficulties in framing a proper 
statute. 

Mr. Justice Johnson assumed that, from their very 
nature, " the offenses which may be denominated con- 
tempts * * * admit of no precise definition/' and " 
evidently concluded that a legislative attempt to 
provide for their punishment would, therefore, be 
impracticable. It is sufficient answer to say, that, 
although it may be difficult, it is never impracticable 
to define by statute every act which it is desirable to 
punish as an offense. But it is unnecessary to do 
so; for. general words would suffice to describe such 
offenses. The Judiciary Act, in giving to the Courts 
of the United States authority to punish this class 
of injuries, described them simply as " contempts of 
authority;" and the Crimes' Act of 1790 included a 
variety of acts under the word " obstructing," when it 
provided punishment for unlawful interference with 
service of process. It is not necessary, therefore, to 
specify every act which may constitute a contempt ; 
nor would such a necessity, if demonstrated, show 
that legislative definition is impracticable, and there- 
fore inadequate. It may be added, that an implied 
necessity for a particular jurisdiction over certain 
matters, on the very ground that the wisdom of the 
law-maker cannot define them, sounds strangely. 

It appears, then, that the ordinary means of afford- 
ing protection by means of punishment, need not be 



— 24 — 

inadequate because the occasions for punishment are 
prescribed by express statute. It only remains to 
inquire whether the ordinary constitutional means 
of administering punishment so provided, must be 
inadequate. 

It seems to have been assumed that, by a necessity 
of which the law must take cognizance, legislative 
bodies are entitled to remedies of protection suitable 
to their dignity and convenience ; and that it is not 
suitable to either that they should be obliged to call 
upon the judicial tribunals to punish offenses against 
them. Of course, this assumption can only be set 
up as an intendment of the Constitution ; since we 
are dealing with those intendments in determining 
whether the houses of Congress have this power by 
implication. 

As a matter of fact, this notion that an appeal to 
other tribunals did not comport with the dignity or 
convenience of a supreme legislature, is* of English 
origin. Lord Coke and his early successors used to 
talk of the privileges and powers of Parliament as 
something which, so far from assuming to protect 
them, the common law courts might not even presume 
to know ; and even when the ordinary courts of 
justice came to assert a right to determine what those 
privileges were, in a case which should enable them to 
reach the question, they still deemed the protection of 
them to be a matter not merelv out of but above their 
sphere Only eleven years before the decision of 
Anderson's case, Lord Ellenborough, in the great 
case of Burdett vs. Abbott, 14 East, 1, said : " Could 
it be expected that they should stand high in the 
estimation and reverence of the people, if, whenever 



— 25 — 

they were insulted, they were obliged to wait the 
comparatively slow proceedings of the ordinary course 
of law for their redress ? That the Speaker with his 
mace should be under the necessity of going before 
the grand jury to prefer a bill of indictment for the 
insult offered to the House ? " This sentiment very 
naturally seized upon the imagination of other judges ; 
but with the great lawyers of Lord Ellenborough's 
own time, the prevailing argument against an appeal 
tothe or dinary tribunals for protection of privilege 
was, not that such an appeal was inconsistent with 
the dignity and convenience of so high a body as 
Parliament, but that Parliament was itself a High 
Court, superior to all other courts of the realm, and 
that there was a legal inconsistency in a resort by a 
higher to a lower court for protection. 

Lord Ellenborough's melo-dramatic picture of what 
would have been a very simple proceeding— and the 
judicial method might have been rendered more simple 
and more expeditious in any degree that Parliament 
might deem convenient — was alarming enough to 
every one who inclined to believe that all English 
institutions were necessary ; and very likely it was 
true that the House of Commons, by laying off its 
power to punisji offenders against its dignity, and 
thus losing a part of its terrors, would have suffered 
a temporary loss of prestige. But it is difficult to 
perceive how such considerations could demonstrate 
that kind of necessity of which a court must take 
judicial cognizance, and from which it must make a 
legal implication of power. They belong to the 
domain of polity, not to that of jurisprudence. Not- 
withstanding the peculiar position of Parliament in 



— 26 — 

the British Constitution, they were, as a matter of 
law, insufficient ground for the assumption of such 
power by the House of Commons. 

But whatever notion Englishmen may have had, 
as to the powers which dignity made essential to their 
legislative assemblies, that notion is not to be imported 
and made a source of power here, unless it is counte- 
nanced by our Constitution. For it cannot be too 
often repeated, we are dealing only with the intend- 
ments and implications of that instrument. 

The first reflection which suggests itself, on turning 
to its provisions, is, that a construction which finds 
there an implication that methods of protection which 
are consistent with the dignity and convenience of the 
Executive, are not consistent with those of the Legis- 
lature, is not to be stated dogmatically, nor accepted 
without the most careful consideration. It is con- 
ceived that, on the contrary, all of the implications of 
the Constitution are that the Legislature is not placed, 
by any exigencies of dignity or convenience, above 
the application of the common means of protection. 

All departments of this Government are the 
creatures of the Constitution, dependent upon it for 
existence or power, co-ordinate and independent in 
operation, equally indispensable to the action of the 
Government. It is an implication of that supreme 
law that all of them shall be protected in the exercise 
of their functions, and that protection of one indis- 
pensable department is as essential as protection of 
another. Methods of protection, by means of punish- 
ment, which are lawfully applicable to all of them, 
have been expressly authorized by it, and to some of 
them no others can be applied. Is it not an intend- 



— 27 — 

merit of a law which provides expressly one method, 
and only one method, by which remedies of protection 
may be applied, that it has not only provided it for 
common use, but as a method which is suitable and 
adequate to common use ? Before any department of 
the Government can deny this implication, and can 
say that the common means of protection, although 
intended to be used in its behalf, were not regarded 
by the Constitution as sufficient in its case, it must 
point out affirmative proof that it is distinguished and 
placed above the others in dignity by that instrument. 
Such a relation to the other co-ordinate agencies of 
the common sovereign is not to be assumed ; it must 
be found in the law which established all of them. 
And whether it is to be found there, does not depend 
upon the impression which the departments may make 
upon the imagination, nor even upon the comparative 
importance and gravity of their functions. As bodies 
which participate in the making of laws by which 
the other agencies of government are bound, these 
assemblies may seem to exercise a superior function, 
and thus to be themselves superior. But a law is 
naught unless it is enforced ; and when they carefully 
distributed these functions, the authors who prescribed 
them said : " We alone are sovereign ; you are only our 
equal agencies, equally important, equally entitled to 
protection, and by equal means.' ■ 

The subordinate ground on which a necessity for 
this power has sometimes been implied — namely, 
that, in order to meet the convenience of legislative 
assemblies,. punishment must be summary, and there- 
fore must be applied by themselves, is hardly worthy 



— 28 — 

of discussion. How did it become a necessity that 
the punishment of this particular class of wrongs 
should be swifter than all other punishments ? When 
the Constitution is content that even the most perilous 
wrongs, aimed directly at the life and safety of the 
whole Nation, such as treason or the counterfeiting 
of the public securities, shall be triable only upon 
indictment and by a jury, it would be a strange 
implication that the same instrument held it to be 
necessary that a mere insult, or a temporary obstruc- 
tion offered to a part of the legislature, should be 
punished without trial and without deliberation, in 
order to be punished effectively. The fact is, that 
the argument simply confounds consequence with 
cause. When a legislative body undertakes to ad- 
minister punishment, its proceedings are inevitably 
summary. It is itself the accuser, the prosecutor, and 
the judge. It has no forms of trial, and, as none but 
its own members take part in its deliberations, it 
affords no standing, except by grace, for counsel or 
defence. The jurisdiction to punish, therefore, was 
not assumed in order that punishment might be sum- 
mary, but punishment was summary because the juris- 
diction was exercised by a body which must proceed 
in that way. 

It is not pretended that there is any novelty in 
these arguments against an extraordinary power. 
They would have been urged with less confidence if 
they were. They were pressed upon the attention of 
Congress long ago in Duane's case, with an ability 
and force which cannot be surpassed ; and we cannot 
do better than to present the recapitulation of them 



— 29 — 

which has been left us by Mr. Jefferson. It was 
urged in the Senate, "that Congress have no such 
natural or necessary powers, but such as are given to 
them by the Constitution ; that it has given them, 
directly, exemption from personal arrest, exemption 
from question elsewhere for what is said in their 
house, and power over their own members and pro- 
ceedings ; for these no further law is necessary, the 
Constitution being the law ; that, moreover, by that 
article of the Constitution which authorizes them ■ to 
make all laws necessary and proper for carrying into 
execution ' the powers vested by the Constitution in 
them, they may provide by law for an undisturbed 
exercise of their functions ; for example, for the 
punishment of contempts, of affrays or tumults in 
their presence, &c. ; but, till the law be made, it does 
not exist, and does not exist from their own neglect ; 
that, in the meantime, however, they are not unpro- 
tected, the ordinary magistrates and courts of law 
being open and competent to punish all unjustifiable 
disturbances and defamations ; and even their own 
sergeant, who may appoint deputies ad libitum to aid 
him, is equal to small disturbances ; that in requiring 
a previous law, the Constitution had regard to the 
inviolability of the citizen as well as of the member ; 
as, should one house, in the regular form of a bill, 
aim at too broad privileges, it may be checked by the 
other, and both by the President; and also as, the 
law being promulgated, the citizen will know how to 
avoid offence. But if one branch may assume its own 
privileges without control, if it may do it on the spur 
of the occasion, conceal the law in its own breast, and, 
after the fact committed, make its sentence both the 



— 30 — 

law and the judgment on that fact ; if the offence is 
to be kept undefined, and to be declared only ex re 
nata, and according to the passions of the moment, 
and there be no limitation either in the manner or 
measure of the punishment, the condition of the citizen 
would be perilous indeed." Jeff. Man., Sec. 3. 

It has been observed that this re-examination of a 
question which has been judicially determined, would 
not have been undertaken, had not the grounds on 
which that decision was partly based been since dis- 
approved by other tribunals of high authority. That 
observation referred to English decisions, which will 
be cited in their proper place. But it may be re- 
marked at this point, that the conclusiveness of An-^ 
derson's case has been impliedly questioned by a very 
high authority in our own country. 

In 1860 the case of Sanborn vs. Carlton, 15 Gray, 
399, occasioned a very full discussion, before the 
Supreme Court of Massachusetts, of the power of the 
Senate of the United States to commit for contempt. 
The case was disposed of on other grounds, without a 
decision of that question; but the remarks which 
Chief Justice Shaw may be said to have seized oppor- 
tunity to make, indicate plainly that, in the opinion 
of that very great judge, the whole matter was open 
to further discussion, and that he by no means re- 
garded the authority of Anderson vs. Dunn as con- 
clusive. He said : 

" This question is a very broad and important one, 
and opens many interesting questions as to the func- 
tions and power of the United States Senate, as a 
constituent part of the executive and legislative de- 



31 



partments of the United States Government, and the 
modes in which they are to be exercised, and the 
limits by which they are qualified. 

" It is admitted in the arguments that there is no 
express provision in the Constitution of the United 
States, giving authority in terms ; but it is maintained 
that it is necessarily incident to various authorities 
vested in the Senate of the United States, in its legis- 
lative, executive, and judicial functions, and must 
therefore be held to be conferred by necessary impli- 
cation. 

"These questions manifestly requiring great de- 
liberation and research, in order to come to a satis- 
factory conclusion, and some preliminary questions 
having been suggested by the petitioner's counsel, it 
was proposed, and not objected to by the learned 
District Attorney and Assistant District Attorney of 
the United States, by whom the court were attended 
in behalf of the respondents, to consider these pre- 
liminary questions first ; because, if the objections, on 
the face of them, were sustained, it would supersede 
the necessity of discussing the other questions arising 
in the case." 

The learned and careful judge who made these 
observations, would hardly have spoken of the question 
of incidental power, as one " requiring great delibera- 
tion and research, in order to come to a satisfactory 
conclusion," and have intimated, as he did, an in- 
tention to discuss that question, in case he should not 
sustain the 1 preliminary objections, had not the reason- 
ing and judgment in Anderson vs. Dunn failed, in his 
opinion, to furnish a satisfactory conclusion. 

Before we proceed to the next branch of this 



— 32 — 

inquiry, it should be repeated that, in order to base 
this power upon an implication from necessity, it must 
appear that such necessity exists in the judgment of 
the Constitution. It would so exist if the general 
principle of self-protection included power to inflict 
punishment ; or if, by any express provision of that 
instrument, or by its omission to afford other means 
of protection, an implication might be made that it 
conceded, in the case of the two houses of Congress, 
a necessity for larger and peculiar power, for the 
purpose of self-protection. But the general principle 
of self-protection does not include power to punish, 
and we have not found in the Constitution any indi- 
cation that it distinguishes between the necessities of 
those bodies, in the matter of protection, and the ne- 
cessities of other functionaries. One more ground, on 
which this intendment of a larger necessity has been 
based, remains to be considered. It has been claimed, 
namely, that the Constitution must have intended 
that the legislative assemblies created by it, should 
have such power as precedent had established to be 
necessary to such bodies, and that precedent had 
established such a necessity in regard to the power 
in question. 



— 33 — 



II. 

It has been assumed that, at the time of the adoption 
of the Constitution of the United States, the existence 
of such a necessity had become a conclusion of law 
by force of precedents supposed to be had in view by 
the framers of that instrument. This was substantially 
the meaning of Mr. Justice Johnson, when he said «' 
" In reply to the suggestion that, on this same foun- 
dation of necessity, might be raised a superstructure 
of implied powers in the executive and every other 
department, and even in ministerial officers of the 
Government, it would be sufficient to observe, that 
neither analogy nor precedent would support the 
assertion of such powers in any other than a legis- 
lative or judicial body." Of course, he meant that 
precedent did support and establish the assertion of 
the necessity in the latter cases. 

This use of precedent has been more explicitly 
stated by Mr. Bishop, in his work on Criminal Law. 
He says : "As a matter of natural reason, we know 
that a court of justice and a legislative body must 
alike be entrusted with the means to preserve order ; 
else neither the one nor the other could do its busi- 
ness. But by what means? This is a question on 
which men will differ ; therefore the law steps in and 
points to ' immemorial usage,' and says, that the power 
which has been immemorially exercised shall be taken 
as the measure of necessity in the case. In other words 
and to apply the proposition to the case in hand, the 
law says that the power which the House of Commons 

5 



— 34 — 

lias exercised, in eases of contempts of its authority 
and of the privileges of its members — conceded to be 
just on all hands — from the beginning of things, is 
the law's measure of what is necessary and proper to 
be possessed by a legislative body similarly situated." 
Bishop, Crim. Law, Vol. 2, Sec. 249, note 4 (Ed. 
1872). 

This passage referred to the implied powers of 
colonial assemblies, and of the State Legislatures ; but 
the same reasoning, as we have seen, has been applied 
to the houses of Congress. The argument in the 
latter case has claimed substantially that, when the 
Constitution gave to these bodies, by implication, 
whatever powers were necessary to the exercise of 
their functions, it had been determined in an authori- 
tative manner that power to punish contempts offered 
them was necessary to that end. Practically, the 
meaning of this proposition was, that the common 
law had determined that the power which it gave to 
the House of Commons was necessary to a legislative 
assembly. 

It is plain that this example, imitated by legislative 
assemblies in this country before the adoption of the 
Constitution, is the real ground on which this claim 
of power for the two houses of Congress is supported : 
its advocates have never ventured to base it wholly 
upon the ordinary principle of self-preservation. It 
is of the utmost importance, therefore, to ascertain 
the ground on which the power of the House of 
Commons itself stood ; and for this purpose it will be 
necessary to consider the history of that body. After 
;i candid attempt to make such an examination, we 
venture, at the outset, to assert that the exercise of 



— 35 — 

this power by that assembly does not even tend to 
show that it is incident ex necessitate to all legislative 
assemblies ; and that it accrued to the House of Com- 
mons simply because the British Constitution did not 
furnish those assured and effective means of external 
protection which the Constitution of the United States 
does furnish. 

It has invariably been assumed that the power of 
the House of Commons to adjudicate and inflict 
punishment for contempts and breaches of privilege 
was of immemorial usage. This was chiefly important 
in order to establish its legality; and for that purpose 
Lord Ellenborough stated very elaborately, in the 
famous case of Burdett vs. Abbott, 14 East. 1, the 
method of setting out the prescription. But imme- 
morial usage has been strongly urged for another 
purpose — namely, as establishing a conclusion of the 
common law, that such power was inherent in the 
very constitution of a legislative assembly, and existed, 
ex necessitate. It is important first, therefore, to in- 
quire into the antiquity of this power of the House 
of Commons. 

Before we take up the specific proofs touching this 
question, it may be observed that the general history 
of the Commons would hardly lead us to suppose that 
they would come very early to exercise an inde- 
pendent means of vindicating their privileges or 
dignity. All the circumstances of their early place 
in the Constitution make it improbable that they 
should do so. For a considerable period their chief 
business as a legislative body was to vote subsidies ; 
1 and even when the authority of their name was used 
in making laws, they were only petitioners. 



— 36 — 

The learned Mr. Spence's sketch of the methods of 
parliamentary action presents a picture in which the 
whole Parliament, Lords as well as Commons, seem 
to stand in shadow; a picture in which they stand 
asking for rights, not vindicating them. We venture 
to quote from his account at some length : " Prior to 
the reign of Edward I (1272), laws appear to have 
been drawn up and proposed to Parliament by the 
King. After the representatives of the Commons 
were admitted as members of the Parliament, a mode 
was opened to the community at large for having 
their petitions presented and attended to. The laws, 
from this time, usually originated in petitions pre- 
sented by the Commons, or by the Lords and Com- 
mons, to the King, or to the King and his council. 
The statutes were drawn up after the end of each 
Parliament, from such of the petitions and the answers 
as were considered fit to be converted into permanent 
laws ; and after having been shown to the King, and 
his consent obtained, they were entered on the Polls 
of Parliament. Writs, in the name of the King, were 
then sent into every county, with directions to have 
the statute proclaimed. So that the statutes, whether 
they originated with the King or not, very commonly 
assumed the form of royal ordinances, or concessions 
from the King, and were promulgated as proceeding 
from the royal authority alone. 

"In the "reign of Edward III (1327-1377) the 
following form was usually adopted : ' These be the 
articles accorded in the Parliament of our Lord the 
King, by our said Lord the King, with the assent of 
the Prelates, Earls, and Barons, and also at the re- 
quest of the Knights of the Shires and of the Commons, 



— 37 — 

by their petitions put in the said Parliament ; ' though 
this form is not uniformly adhered to. 

" Many inconveniences arose to the subject, and 
numerous irregularities were occasioned, from the 
ancient mode of framing and publishing the statutes ; 
sometimes no statute was made, though agreed on ; 
things agreed on were occasionally omitted ; some- 
times things neither prayed for nor agreed on were 
added ; and sometimes entire statutes were made, to 
which neither Lords nor Commons had assented. 
The Commons, in the reign of Henry IV (1399-1413), 
petitioned for a remedy for these inconveniences and 
abuses; and the King, in answer, conceded that in 
future the clerks of the Parliament should draw up 
the Acts, with the advice of the Justices, from the 
substance of the proceedings, and then show them to 
the King for his assent. 

" In the succeeding reign (Henry V, 1413-1422) 
the King, in answer to a petition of the Commons, 
conceded that nothing should be enacted on the 
petition of the Commons that was contrary to their 
asking, whereby they should be bound without their 
consent. But the due enactment of laws, as assented 
by the Lords and Commons, was for the first time 
effectually secured by the practice which obtained in 
the reign of Edward IV (1461-1483), and has con- 
tinued ever since, of reducing the petition or bill into 
the form of an Act, and presenting it in that state for 
the royal assent, or rather, as it should be called, fiat, 
looking to the terms in which that assent is conveyed. 

" From the reign of Henry VII downwards, the 
/statutes have been uniformly drawn up as made with 
the assent and by the authority of the Commons 



38 — 



equally as of the Lords ; though the imperial style is 
still so far preserved, that the sovereign enacts by the 
special authority of the Lords and Commons in the 
particular case." 1 Spence Eq. Jur., 263-272. 

Such a picture as this does not prepare us to credit 
the assumption that the present privileges or powers 
of the House of Commons were conceded by a formal 
statute in the time of Henry III. A body which, 
at the beginning, attended Parliament only to say 
whether it would be taxed, and afterwards played 
only the part of petitioners in matters of general legis- 
lation ; attaining the position of equal authority with 
the Lords after two hundred years of existence, was 
not likely to take very high ground concerning its 
privileges until it found itself set well upon its feet. 
The claim that its present privileges, and, a fortiori, 
the claim that its peculiar jurisdiction for the pro- 
tection of those privileges, was actually of immemorial 
usage, coincident with its action as a legislative as- 
sembly, would be rejected by a disinterested reader of 
English history as wholly inconsistent with known 
facts, and even if no specific disproof existed. But 
specific disproof does exist. The recorded precedents, 
which have been collected by Hatsell, show that 
centuries elapsed after the establishment of the House 
of Commons, before that body took into its hands the 
vindication and protection of even its most indispens- 
able privileges. And we shall find that, during all 
that time, the Commons were dependent, for protec- 
tion, upon the King, or upon the King and the Lords, 
or upon the common law courts ; and that they were 
protected only by civil remedies. 

In 9 Edw. II (1316) the Prior of Melton, whose 



39 — 



parliamentary privilege had been violated, resorted to 
a remedy which placed the matter on the footing of a 
private injury. 1 Hatsell, 12. This proceeding was 
by an original writ of attachment, returnable into the 
King's Bench ; and, as Mr. Holroyd said in the argu- 
ment of Burdett vs. Abbott, it appears plainly to have 
been an action for a trespass and a breach of privilege 
also ; the matter complained of being the distraining 
of the plaintiff, by his horses and harness, at York, 
while returning from the Parliament at Lincoln. 
The manner in which the privilege was alleged is im- 
portant ; it was set out in the form of a recital of the 
King's obligation to protect the prelates, earls, barons 
et alios, tarn clericos quam laicos, against all griev- 
ances. The process was executed and the defendants 
were attached, but no judgment upon it has been 
found ; so that the result of the case does not appear. 
The fact, however, that an action was brought for that 
which was complained of as a breach of privilege of 
Parliament, as well as a trespass, and that the defend- 
ants, who might have had a good cause for distraining, 
except so far as respected the breach of privilege, were 
put to answer both, informs us of the condition of the 
law at that time touching the matter of protection. 

The next case was in 5 Hen. IV (1404), 1 Hatsell, 
13, where the Commons addressed a petition to the 
King, praying his protection of their privilege, in 
language which frankly describes a dependence which 
was actual, not theoretical. They set forth that, ac- 
cording to the custom of the realm, they and their 
servants attended Parliament under the King's special 
protection and defense, and that divers of their mem- 
bers, and the servants of members, had been arrested 



— 40 — 

in coming to and during Parliament, " en contempt de 
vous, grande damage de partie, et retardacion des 
besoignes de vos Parliamentz," and thereupon prayed 
that persons causing such arrests should pay a fine to 
the King and treble damages to the party aggrieved. 
The answer, through the Lords, refused the prayer, 
because a sufficient remedy already existed. What 
this sufficient remedy was, is not clear; but it has 
been suggested (1 Hatsell, 14) that it was merely the 
writ of privilege or habeas corpus. The writ of privi- 
lege issued out of chancery, and was merely for the 
release of the member. It was not claimed that such 
injuries were a contempt of Parliament ; they were a 
" retardacion " of its business, while the contempt 
affected the King. All that the Commons asked was 
that he should punish such offenders, and that the 
aggrieved member should be compensated ; and this 
was deemed unnecessary. In the same year, on the 
occasion of Chedder's case, the Commons, setting forth 
that they and their servants were often subjected to 
personal injuries ; for example, murder, mayhem, and 
battery, and that there was no sufficient remedy, 
prayed that the King should provide such remedy. 
In response, it was ordered that persons so offending, 
were to appear before the King's Bench and then be 
adjudged to pay damages and a fine. 

In 8 Hen. VI (1430), 1 Hatsell, 17, one William 
Larke, servant of a member, was committed to the 
Fleet, in execution of a judgment of the King's Bench 
recovered before time of Parliament. The Commons, 
reciting their privilege, pray the King " to order, by 
the authority of your Parliament, that said William 
Larke be delivered from your said prison " (saving to 



— 41 



the plaintiff her execution), and also to grant by the 
same authority that none of your lieges, the Lords, 
knights fpr counties, citizens or burgesses, called to 
your Parliament, their servants or domestics, be 
arrested or detained in prison in time of Parliament, 
unless for treason, felony, or surety of the peace." 
The King simply granted, by the authority of Parlia- 
ment, that Larke should be delivered out of prison. 

No one seems to have imagined yet any contempt 
of Parliament, and it would seem to have been thought 
that the privilege against arrests was too broadly 
claimed. Hatsell says of this case : " The Commons 
certainly declare it to be their opinion, that they had 
clearly the privilege of being free from all arrests, 
during the Parliament, except for treason, felony, or 
surety of the peace. But when at the close of the 
petition they pray that for the future it may be enacted 
into a law that no knights, citizens or burgesses, or 
their servants, may be arrested or detained in prison 
during the time of Parliament, except for treason, 
felony, or surety of the peace, the King refuses their 
request, and gives a parliamentary negative; and 
therefore the more natural conclusion to be drawn, as 
well from the petition as from the King's answer, 
appears to be that this was not acknowledged to be 
law, in the extent in which the Commons laid it down." 
When this precedent was cited in Arundel's case, 
the Lords said of it, that the petition might well be 
refused, because it asked more than the privilege; 
Larke's imprisonment being before time of Parlia- 
ment ; but it should be observed that it was chiefly 
for a more effective remedy that the Commons asked ; 
7 and Hatsell well suggests that the King could easily 



6 



— 42 — 

have granted part of the prayer. Plainly there was 
no haste to magnify the Commons. 

Two years later, 1432 (1 Hatsell, 22), they pray 
the King to order, by authority of Parliament, that 
if any trespass, offense, or damage shall be done to 
the persons of knights, citizens, or burgesses, or to 
their servants, come to Parliament, the party aggrieved 
may have a writ of trespass against him who shall 
commit the wrong, returnable into the King's Bench, 
and thereupon have double damages. It was still 
only a private action that they proposed; but they 
thought that the damages should amount to a penalty. 
But the King refused, leaving the Commons to the 
law as it stood already. That is to say, they could 
recover only common damages, as had been allowed 
in 5 Hen. IV. 

The next precedent, which occurred in 11 Hen. VI 
(1433), is introduced by Hatsell with the following 
remark : " However, the next year, the same mischief 
continuing, and it being found necessary, from the 
frequent assaults made on members attending their 
duty in Parliament, to apply some more speedy and 
effectual remedy than what the common law allowed, 
the House of Commons again are obliged to petition 
the King for redress." 1 Hatsell, 24. 

Beciting first the statute in Chedder's case, they 
then set forth an assault upon Bichard Quatermains, 
one of the knights for Oxford ; and thereupon pray 
that a statute be passed that, in case of an assault 
upon a member, proclamation shall be made where 
the offense occurred, requiring the offender to appear 
before the King's Bench; where, upon default to 
appear, or appearing and being found guilty, he shall 



43 — 



be adjudged to pay double damages. The Commons 
had greatly moderated their earlier demands, though 
their grievances had become more frequent and vio- 
lent. This time their prayer was granted, and from 
this petition and answer was drawn up, and entered 
on the Statute Roll, the Act of 11 Hen. VI. 

After citing this precedent, Hatsell remarks : " Not- 
withstanding these repeated acts of Parliament to 
secure the members of both houses from any insults 
on their persons, such was the licentiousness of the 
times — or, rather, so slow and ineffectual were the 
remedies given by these laws— that in a very few 
years the Commons again apply to the King for 
further provisions to suppress this very dangerous 
practice." 1 Hatsell, 27. This time they pray for 
the same writ of proclamation that had been allowed 
at that Parliament to Sir Thomas Parr ; but what 
that writ was is not known. 

We come next to Thorpe's case, 31 and 32 Hen. VI 
(1454) , in which there was a total denial of remedy, 
and even the privilege itself of the Commons House 
was treated with contempt by the Lords. A judg- 
ment had been recovered by the Duke of York against 
the Speaker of the House of Commons, in an action 
of trespass brought into the Court of Exchequer, and 
the Speaker was taken in execution and committed to 
the Fleet, as well for the fine due to the King, as for 
the damages adjudged to the plaintiff. Upon the 
meeting of Parliament, the Commons petitioned the 
King and the Lords that they might enjoy all such 
liberties and privileges as they had been accustomed 
and of ancient times used, for coming to Parliament, 
and going and returning; and then they required 



— 44 — 

that their Speaker might have his liberty ; this being 
declared to be a privilege of Parliament The Lords, 
assuming entire control of the matter, consulted the 
Judges, who, with a protestation that it was not for 
them to determine the privileges " of the High Court 
of Parliament," proceeded to state what they would 
do if the matter came before their courts upon a writ 
of privilege, and in this indirect manner they informed 
the Lords that the Speaker had privilege to be released 
from arrest. Nevertheless, the record shows that it 
was "concluded by the Lords" that Thorpe should 
remain in prison according to law — which meant 
according to the common law — notwithstanding the 
privilege of Parliament and the fact that he was 
Speaker. The answer of the Lords " being a matter 
of law," was communicated to the Commons by one 
of the law officers attending the House, and there- 
upon the Commons were actually enjoined to proceed 
without delay to choose a new Speaker. And this 
was done. Little delay, indeed, marred any part of 
this extraordinary proceeding; for only three days 
elapsed between the petition of the Commons and their 
election of a Speaker. The violation of privilege was 
flagrant and contemptuous, and the decision of the 
Lords has ever since been conceded to have been 
monstrous; yet even in such a case it was not im- 
agined by the Commons that they possessed any 
means of helping themselves. 

When this case was referred to in the debate on 
the 8th of March, 1620, Sir N. Rich said : " It is a 
case begotten by the iniquity of the times, when the 
Duke of York might have had an overgrown power 



— 45 — 

in it;" and doubtless the Duke had much to do with 
the conclusion of the Lords ; for he was present in 
their House during the whole proceeding. But the 
"iniquity of the times" does not account for the fact 
that the Commons proceeded by petition. That pro- 
ceeding had been their uniform course when one of 
their members was arrested. 

Hatsell points out that their course, in petitioning 
as well the Lords as the King, was an extraordinary 
feature in this case; but there would seem to have 
been good reason fcf such a departure from custom. 
Henry must have been, at that time, disabled by one 
of his fits of insanity. The Duke had opened that 
Parliament on the 14th of February, 1454, " as lieu- 
tenant or commissioner for the King," and may 
already have been elected by it " to be protector and 
defender of the realm of England." 

In the next case which occurred, 39 Hen. VI 
(1461), the petition of the Commons was addressed 
to the King alone. It asked for a special statute to 
enable the Lord Chancellor to release Walter Gierke, 
one of their members, from imprisonment on exe- 
cution. 1 Hatsell, 41. 

Fourteen years later, 14 Edw. IV (1475), a similar 
petition was made in the case of Edward Hyde, a 
member. This precedent is noticeable because, only 
two years before that time, the Court of Exchequer 
had held, in the case of John Walsh, " that a member 
was not liable to be imprisoned for debt, sitting the 
Parliament." Such a judgment would seem to mean 
ithat the imprisonment, even in execution, was illegal. 
If that were so, a special act would not be necessary 
for the purpose of saving the Sheriff from liability 



— 46 — 

for releasing the prisoner, or of saving the plaintiff's 
execution. Yet the Commons, who must have known 
of that decision, only asked for Hyde's release, and 
on the usual terms. Hatsell therefore expresses the 
opinion that imprisonment of a member on execution 
could not, at that time, have been illegal, and that 
there was no other redress than a special act of 
Parliament. 1 Hatsell, 47, 48. Up to this time, then, 
it would seem that, so far from the House of Com- 
mons having independent remedies of its own, even 
its very privilege was trammelled by the process of 
the common-law courts, and that when the latter was 
used in execution, it could not be set aside or super- 
seded, except by an act of the whole Parliament. 

These precedents, running through a period of one 
hundred and sixty years, from 1315 to 1475, show — 
1st. That the only privilege claimed by the Commons 
was freedom and safety for themselves, and their ser- 
vants attending them, in coming to, continuing at, 
and returning from Parliament ; including under this 
head, in one or two instances, an exemption of their 
necessary goods. 2d. That, for protection in this 
privilege, they were, both in fact and according to 
their own theory, dependent upon the King and his 
courts of common law, or upon the King and the 
Lords in Parliament. 3d. That the only remedies 
provided for a violation of this privilege were, a mere 
release from imprisonment, or an award of damages ; 
in some cases penal. These conclusions are fully sus- 
tained by the English writers on Parliamentary law. 
Mr. Hatsell, in speaking of the period which came 
down to 39 Hen. VI, says : " The privileges claimed 
by the House of Commons during this period, were 



— 47 — 

only for the knights, citizens, and burgesses, and 
their menial servants or familiares, present with them 
in their attendance on Parliament. 2. The duration 
of these privileges is in no instance carried further 
than in their coming, staying, and returning to their 
homes. 3. The extent of the privilege claimed is, to 
be free from any assaults, or from arrests and im- 
prisonments, except for treason, etc." 1 Hatsell, 38. 
And, in speaking of the remedies for violation of 
these privileges, as they stood even three-quarters of 
a century later, he says : " Hitherto we have seen that 
when a member, or his servant, has been imprisoned, 
the House of Commons have never proceeded to 
deliver such person out of custody by virtue of their 
own authority ; but, if the member has been in exe- 
cution, have applied for an act of Parliament to enable 
the Chancellor to issue his writ for his release, or, if 
the party was confined only on mesne process, he has 
been delivered by his writ of privilege, which he was 
entitled to at common law." 1 Hatsell, 53. And 
Sir Thomas Erskine May, who would not hastily 
impugn the antiquity of any Parliamentary privilege 
or power, frankly describes the earlier condition of 
the law in similar terms. He says : " In treating of 
the privileges of individual members, it will be shown 
that, in the earlier periods of Parliamentary history, 
the Commons did not always vindicate their privi- 
leges by their own direct authority ; but resorted to 
the King, to special statutes, to writs of privilege, and 
even to the House of Lords, to assist them in protect- 
ing themselves. It will be seen in what manner they 
gradually assumed their just position, as an inde- 
pendent part of the Legislature, and at length estab- 



(«* 



— 48 — 

lished the present mode of administering the law of 
Parliament." May's Pari. Law, 69. (a) 

The first of the steps by which the Commons 
" gradually assumed " the powers and privileges, 
which are now claimed to be of " immemorial usage," 
was taken in the case of George Ferrers, which 
occurred 34 Hen. VIII (1543). 

As the date of this step is of some importance, it is 
proper, before stating that case, to correct a citation 
which Lord Ellenborough is reported to have made 
in Burdett vs. Abbott. Evidently intending to cite 
the cases in chronological order, he says : " I would 
refer only generally to the case of Ferrers (very 
fully reported in Crompton's Jurisdiction of Courts) ; 
Treivinnard 's case, in Dy. 59; William Thranwis's 
case, in 1529, who was committed to the custody of 
the Sergeant-at-Arms, for a contempt in words against 
the dignity of the House; etc." No such case as 
Thranwis's is mentioned either by Hatsell or May, 



(a) Mr. Holroyd, whose statements, even in the argument of a cause, 
may be regarded as authority, pointed out, in the argument of Burdett vs. 
Abbott, that in the time of Henry VII the House of Commons, so far from 
inflicting punishment for breach of their privileges, did not even act upon 
their own authority in delivering a member imprisoned contrary to privi- 
lege. In citing the case of Boo vs. Sadcliffe, 1 Hen. VII, he said : " Up to 
that period the House of Commons had never proceeded as for a breach 
of privilege upon their own authority. When it was a common case of 
privilege known to the law, a Avrit of privilege was issued as a matter of 
course, by which it was enforced: when there was any doubt or difficulty 
in the matter it was referred to the consideration of the whole Parliament, 
and acted upon by them as a matter of common concern to both houses; 
but it never was acted upon by the Commons alone on their single reso- 
lution: they had never proceeded to deliver any person arrested upon 
process out of custody by their own authority : on the contrary, they had at 
las! abandoned their repeated claim and privilege to be exempt from being 
impleaded during Parliament, after it had been as often disallowed by the 
Lords and the judges." 14 East. 1. 



— 49 — 

and the name and date of the case are undoubtedly 
wrong. The learned Judge intended, of course, to 
refer to the case of William Thrower, which occurred, 
not in 1529, but in 1559. Thrower, who was a ser- 
vant of the Master of the Eolls, was called before the 
bar of the House for having said at Lincoln's Inn, 
that if a certain ridiculous bill about women's head 
gear were introduced in the Commons they would 
make a question of it ; and that he had heard some 
of the Lords say so at his master's table. It was 
in the latter statement that the sting lay, and poor 
Thrower had to suffer vicariously. But it was not 
upon any such matter as that, that the power to 
punish for contempt would be used, until it had grown 
somewhat familiar by use. As the real occasion of 
its first exercise, as well as the date, are of some 
moment, it has been deemed worth while to correct 
what is probably only a printer's error. 

We return then, to Ferrers' case, as the original 
of this power. The following account of it is taken 
by Hatsell from Holinshed's Chronicles : 

"In the Lent season, whilst the Parliament yet 
continued, one George Ferrers, Gentleman, servant to 
the King, being elected a burgess for the town of 
Plimmouth, in the county of Devon, in going to the 
Parliament House, was arrested in London by a pro- 
cess out of the King's Bench, at the suit of one White, 
for the sum of two hundred marks, or thereabouts, 
wherein he was late afore condemned as surety for 
the debt of one Weldon of Salisbury ; which arrest 
being signified to Sir Thomas Moile, Knight, then 
Speaker of the Parliament, and to the Knights and 
Burgesses there, order was taken that the Sergeant of 

7 



— 50 — 

the Parliament, called 8. J., should forthwith repair 
to the Counter, in Bread Street, whither the said 
Ferrers was carried, and there to demand delivery of 
the prisoner. Thereupon the Sergeant, as he had in 
charge, went to the Counter and declared to the Clerks 
there what he had in commandment; but they, and 
other officers of the city, were so far from obeying 
the said commandment, as, after many stout words, 
they forcibly resisted the said Sergeant; whereof 
ensued a fray within the Counter gates, between the 
said Ferrers and the said officers, not without hurt of 
either part ; so the said Sergeant was driven to defend 
himself with his mace of armes, and had the crown 
thereof broken by bearing off a stroke, and his man 
stroken down. During this brawle, the Sheriffs of 
London, called Eowland Hill and H. Suckley, came 
hither; to whom the Sergeant complained of this 
injury ; and required of them the delivery of the 
said Burgess, as afore; but they bearing with their 
officers, made little account either of his complaint or 
of his message, rejecting the same contemptuously, 
with much proud language, so as the Sergeant was 
forced to return without the prisoner; and finding 
the Speaker and all the Knights and Burgesses set in 
their places, declared unto them the whole cause as it 
fell out : who took the same in so ill part, that they 
altogether (of whom there were not a few, as well 
of the King's Privy Council, as also of his Privy 
Chamber) would sit no longer without their Burgess, 
but rose up wholly and retired to the Upper House ; 
where the whole case was declared by the mouth of 
the Speaker, before Sir Thomas Audley, Knight, then 
Lord Chancellor of England, and all the Lords and 



— 51 — 

Judges there assembled ; who, judging the contempt 
to be very great, referred the punishment thereof to the 
order of the Commons House. 

" They, returning to their places again, upon new 
debate of the case, took order that their Sergeant 
should eftsoon repaire to the Sheriffs of London and 
require delivery of the said Burgess, without any writ 
or warrant had for the same, but only as aforesaid : 
Albeit the Lord Chancellor offered there to grant a 
writ, which they of the Commons House refused; 
being of a clear opinion that all commandments and 
other acts proceeding from the Neather House were 
to be done and executed by the Sergeant without 
writ, only by show of his mace, which was his war- 
rant. But before the Sergeant's return into London, 
the Sheriffs having intelligence how haynously the 
matter was taken, became somewhat more milde, so 
as, upon the said second demand, they delivered the 
prisoner without any denial. But the Sergeant having 
then further in commandment from those of the 
Neather House, charged the said Sheriffs to appear 
personally on the morrow, by eight of the clock, 
before the Speaker of the Neather House, and bring 
thither the Clerks of the Counter, and such other of 
their officers as were parties to the said affray, and in 
like manner to take into custody the said White, 
which wittingly procured the said arrest, in contempt 
of the privilege of the Parliament. Which command- 
ment being done by the said Sergeant accordingly, 
on the morrow the two Sheriffs, with one of the 
Clerks of the Counter (which was the chief occasion 
of the said affray), together with the said White, 
appeared in the Commons House : when the Speaker 



— 52 — 

charging them with their contempt and misdemeanor 
aforesaid, they were compelled to make immediate 
answer, with out being admitted to any counsell ; 
albeit Sir E. Cholmley, then Kecorder of London, 
and other counsell of the city there present offered to 
speak in the cause, which were all put to silence, and 
none suffered to speak but the parties themselves; 
whereupon in the conclusion the said Sheriffs, and 
the same White, were committed unto the Tower of 
London, and the said Clerk (which was the occasion 
of the fray) to a place there called Little Ease, and 
the officer of London, which did the arrest, called 
Bayley, with four officers more, to Newgate, where 
they continued from 28th until 30th of March : and 
then they were delivered, not without humble suit 
made by the Lord Mayor of London and other 
friends. 

" The King, being then advertised of all this pro- 
ceeding, called immediately before him the Lord 
Chancellor of England and his judges, with the 
Speaker of the Parliament and other the gravest 
persons of the Neather House, to whom he delivered 
his opinion to this effect: First commending their 
wisdom in maintaining the privileges of their house 
(which he would not have to be infringed in any 
point), alleged that he, being head of the Parliament, 
and attending in his own. person upon the business 
thereof, ought in reason to have privilege for him 
and all Lis servants attending there upon him. So 
that if the ,said Ferrers had been no Burgess, but 
only his servant, that in respect thereof he was to 
have the privilege as well as any other: * * and 
we are informed by our Judges, that we at no time 



— 53 



stand so highly in onr estate royale, as in the time of 
Parliament, wherein we as head, and you as members, 
are conjoined and knit together in one body politic, 
so as whatsoever offence or injury (during that time) 
is offered to the meanest member of the House, is to 
be judged as done against our person and the whole 
Court of Parliament ; which prerogative of the Court 
is so great (as our learned counsell informeth us) , as 
all acts and processes coming out of any other inferior 
courts must for the time cease and give place to the 

highest." 

The authenticity of this case has been questioned ; 
probably because the first report of it is found in 
Holinshed's Chronicles. Hatsell mentions in a note 
(Vol. I, p. 57) that : " In Carte's History of England, 
Vol. Ill, pp. 164, 541, it is said: 'That the whole 
case of Ferrers, related by Holinshed and copied by 
Grafton and Speed, is untrue.' Carte supposes the 
case to be a mere fable, which the Puritans and 
Calvinists prevailed upon Holinshed to insert in his 
history to serve some political purpose." Like enough 
both parties colored highly in those days; but, as 
Holinshed's book appeared in 1577, only thirty-four 
years after the alleged date of Ferrers' case, it is not 
probable that even the most unscrupulous partisan 
would venture so soon to create a parliamentary event. 
It would be well remembered whether the Lords and 
Commons took the courses ascribed to them. Besides, 
we find Holinshed's report reproduced in Crompton's 
Jurisdiction of Courts, which was printed in 1592 ; 
and Crompton vouches for his own precautions and 
accuracy in these words: "Because this case hath 
been diversely reported, and is commonly alleged as 



54 



a 



precedent for the privilege of Parliament, I have 
endeavoured myself to learn the truth thereof, and to 
set it forth with the whole circumstances at large, 
according to their instructions who ought best to 
know and remember it." The lapse of forty-nine 
years could not have removed all witnesses capable 
of remembering so marked a change in Parliamentary 
action ; and many lawyers must have been living in 
Crompton's time who might have learned the facts 
from those who actually witnessed them. The very 
diversity of reports with which he had met, was more 
likely to happen in the tradition of an actual event 
than in fiction ; and his statement that he had the 
facts from persons who remembered them must be 
accepted as conclusive proof, unless it is overcome by 
positive disproof, or by an extreme improbability that 
such a case could occur. Neither of these appears. 
Carte's disbelief is not disproof; and as to proba- 
bility, we know that a change had taken place, and 
that power to punish as a contempt, such acts at least 
as were committed in Ferrer's case, had been assumed 
by the House of Commons. As to the time when this 
change occurred, we know that it must have been 
before the year 1552, when the power was unquestion- 
ably exercised in Creketoste's case. 1 Hatsell, 71. 
There is no reason, therefore, to doubt the authen- 
ticity of Holinshed's account of Ferrers' case. 

We have now followed the precedents through a 
period of two hundred and thirty-six years, from 
1316 to 1552, and may gather from them several im- 
portant conclusions. 

1st. A breach of the privileges of the House of 



— 55 — 

Commons was undoubtedly understood to constitute 
a contempt of the privileges of Parliament, and no 
doubt was punishable; but no instance has been found 
of such contempt having been punished by any au- 
thority whatever prior to 1543. For almost three 
centuries, the protection of the Commons seems to 
have been confined to a mere release of their members 
from imprisonment and to a recovery of damages. 

2d. It appears that, prior to the year 1543, it was 
understood that, although a contempt of the privileges 
enjoyed by the Commons might be punished, the law 
of the realm did not vest in them an independent 
authority and jurisdiction to inflict such punishment. 
The action of the Commons in appealing to the Lords 
in Ferrers' case, the action of the Lords in "referring 
the punishment" to the Commons, and the action of 
the King in communicating his approval of what had 
been done, are conclusive evidence on this point. 

3d.. It appears that, when the Commons undertook 
to exercise that jurisdiction, they acquired it substan- 
tially by grant, and that the matter was so understood 
by themselves and by the Lords and by the King. 
On this point, also, their appeal to the Lords, the 
reference of the matter to them by the Lords, and the 
King's peculiar manner of sanctioning the whole pro- 
ceeding, are conclusive evidence. It is not important 
to determine how nearly the actual, though informal, 
consent of all the branches of Parliament was equiv- 
alent to a statute of the realm, for the purpose of 
conferring the power; it is enough that it accrued 
to the Commons practically by concession, and as 
something which they were well understood not to 
possess already. When the question is, whether the 



— 56 — 

power was inherent in the House of Commons, as a 
power necessarily incident to the constitution of a 
legislative assembly for the purposes of self-protec- 
tion, or was the mere creature of law — -in other words, 
whether it was ex necessitate or was merely lawful — it 
is immaterial that the formalities of legislation were 
not observed. Other constitutional powers of that 
house have grown up in an equally informal manner, 
but are nevertheless held to have been established by 
law. 

4th. It appears that, in accordance with the patch- 
work method of the British Constitution, this grant 
was in effect a Constitutional distribution of power, 
and that it came to pass because the Constitution had 
hitherto failed to provide any sufficient means for the 
protection of the Commons. It was impossible, by 
reason of the interests of other powers in the State, to 
furnish such protection in any other way. It could 
not be administered by the Courts ; for the Constitu- 
tion could not at that time provide an independent 
judiciary. It could not be administered by means of 
special acts, for legislation was a matter of discretion, 
and might not be obtained. In short, this was the only 
provision which the British Constitution of that time 
could make. The result does not even tend to demon- 
strate that such a power and jurisdiction was inherent 
in, and belonged ex necessitate, to a legislative body. 

Of course, it is not pretended, in characterizing 
that proceeding as a constitutional distribution of power, 
that it was deliberately and consciously undertaken 
for that purpose. It is only in looking back upon 
the history of the Commons, that the actual forces 
and reasons which brought about this, like other 



— 57 — 

changes, can be appreciated. Considered from that 
point of view, it was as much a part of English con- 
stitution-making, as other powers of the House of 
Commons. 

It is not for a moment denied that there was a 
necessity that the House of Commons should acquire 
this power, and that they should possess it as a means 
of self-protection. But it is insisted that that necessity 
was peculiar to its position among the contending 
powers of the State, and that it would not have arisen 
if the antagonistic powers had been willing to provide 
other means. 

That such a step, apparently towards independ- 
ence, should have been achieved in the last years of 
Henry VIII, may seem to be a matter of some 
wonder; for the student of English History would 
hardly look to that period for any development of 
parliamentary powers which should render either the 
Lords or the Commons less dependent upon the King. 
Both bodies usurped enormously to further his will ; 
but against it they dared not claim their own. Their 
relation to him, in legislative matters, was simply 
that of shameful servility, and it is difficult to decide 
which of them was readier to degrade itself. But the 
explanation is not wanting ; and the accidents which 
enabled the Commons to secure so great a power 
amid such complete subjection, have been shrewdly 
suggested by English commentators on parliamentary 
history. Hatsell points out the consideration that it 
was important to Henry that he should appear to 
the Catholic powers of the Continent to have a good 
understanding with his Parliament. Of course he 
was ready to do, for such a purpose, anything that 

8 



— 58 — 

did not interfere with his own aims, or involve a 
material sacrifice of power; and this concession 
appeared to involve none. He saw in the occasion 
an opportunity to gain at least as much as he con- 
ceded. There had been no doubt that privilege 
exempted the servants of members, as well as mem- 
bers themselves, from imprisonment; and Henry 
proposed to share this protection for his servants, by 
reminding them that he also was a part of the Parlia- 
ment, attending in person upon its sittings. And, as 
Hatsell suggests, it was quite as much to the fact that 
Ferrers was his servant, as to the fact that he was their 
member, that the Commons were indebted for his 
ready acquiescence in their proceedings, (a) What 
might have befallen in a case less agreeable to his 
temper, we have no means of knowing ; for Creketoste's 
case, which was the next instance, occurred in the 
reign of his successor. 

We are not to suppose, however, that their juris- 
diction, or the application of their privileges, had 
taken a definite form even in their own minds. They 
conducted themselves as men always do in the process 
of acquiring a power. In 1555, when one of their 
members " was bound in a recognizance in the Star 
Chamber, to appear before the Council within twelve 
days after the end of this Parliament," they laid 
before the Lords a declaration that their privilege 
was violated thereby. The Lords decided, however, 
that it was not. 1 Hatsell, 74. They did not under- 



(a) Mr. Holroyd, in the argument of Burdett vs. Abbott, said of Ferrers' 
case: "It appears that the allowance of the privilege in that case was as 
well in respect of the claim of the King for his servants, as of the claim of 
the House for its members." 



— 59 — 

take to decide the matter for themselves. And in 
1575, when a servant of Mr. Hall, one of their mem- 
bers, was imprisoned for a debt, a committee, to whom 
they referred the matter, actually reported to the 
House that they could find no precedent for deliver- 
ing him by the mace, and that a writ from the Lord 
Keeper would be necessary. The House accordingly 
instructed Mr. Hall to apply for a writ of privilege. 
Some time afterwards (the writ probably not having 
been granted) they summoned the Sergeants of Lon- 
don, who held the prisoner, and delivered him by 
their own order. 1 Hatsell, 89. Nothing could better 
illustrate that this jurisdiction was still in process of 
formation and establishment. 

In the very next case, they assumed the air and 
power of a court of justice; still swinging between 
extremes in the manner that is characteristic of an 
unsettled jurisdiction. In 1580, they arraigned Arthur 
Hall, one of their members, for having written and 
published a book which contained what they held to 
be libelous charges against their House; and the 
Speaker delivered to him a judgment by which he 
was condemned to expulsion, to imprisonment for the 
definite period of six months, and to pay a fine to 
the Queen. Hatsell speaks of this as a" very new 
and extraordinary proceeding," and suggests that 
there must have been a secret history in the case, 
and that it must have involved some particular 
offence to the Queen. 1 Hatsell, 93. Very clearly, 
the proceeding was new and extraordinary, and it 
shows that the jurisdiction of the House of Com- 
mons to inflict punishments depended upon its 
iemper, and had not yet come to have definite limits. 



— 60 — 

No such extent of power has been exercised in more 
constitutional times. 

The manner in which this jurisdiction of the Com- 
mons was exercised during the first forty years of its 
existence, has already shown that it was brought into 
existence and moulded by circumstances peculiar to 
English history ; and that it did not accrue to that 
body because it must belong to every legislative 
assembly. 

But this law of its origin and operation cannot be 
fully ap23reciated until we shall have considered the 
later experiences of the House of Commons. When 
they first undertook to exercise this power, they made 
no pretension to determine what their privileges were ; 
they vindicated only such as were universally con- 
ceded. But they came in time to claim a right to 
define as well as to defend their privileges ; and we 
shall find that, throughout their whole course, they 
were always impelled by the necessities of their 
peculiar surroundings. Their later history will ex- 
plain the origin of their peculiar power even better 
than its beginning has done ; because it illustrates 
the method and law of its existence and growth. We 
shall find that privileges, inherent in the strictest 
sense in legislative bodies, would have been lost, but 
for the assertion of a still larger independence. None 
of them, for example, could be more indispensable 
than freedom of speech ; and for exercising that right, 
the Commons were lectured and threatened and pun- 
ished through still another century. Elizabeth treated 
that "liberty" as a mere concession of the crown, a 
sufferance, and not as a constitutional right, equal to 



— 61 — 

her own prerogatives. In her very first Parliament, 
when the Speaker mentioned freedom of speech, in 
petitioning for the ancient privileges of the Commons, 
she gave them to understand that it was to be used 
" reverently and decently;" D'Ewes, 16; 1 Hatsell, 
75 ; and she decided more than once whether it had 
been so used. Thirty-four years afterwards she caused 
her Lord Keeper, Sir John Puckering, who had him- 
self been Speaker, to say to them : " Liberty of speech 
is granted you; but you must know what privilege 
you have — not to speak every one what he listeth, or 
what cometh in to his brain to utter — but your privi- 
lege is Aye or No." 1 Park His. 861 ; May, 114. It 
is pretty clear, therefore, that her notion of their 
privileges was a settled political doctrine of the crown. 
On the other hand, she informed them that some 
matters were not subjects of legislation at all. In 
these she did not recognize even the privilege of Aye 
and No. There could be no doubt of their consti- 
tutional right to consider measures to prevent a dis- 
puted succession ; even Henry VIII had employed 
them in " settling" the crown; but in 1566, while 
they were discussing the question of her marriage 
and the succession, she " commanded" them not to 
proceed further in the matter. They knew she had 
no right to do so ; but even Peter Wentworth, their 
boldest member, ventured only to doubt whether such 
an interference was not an infringement of their privi- 
leges and liberties. In 1585 she sent for Mr. Speaker 
Puckering and reprimanded him for allowing a bill 
to be introduced for the further reform of the church. 
He communicated her displeasure to the House, and 
tne bill was allowed to drop. 1 Pari. His. 830. In 



— 62 — 

the opening of the next Parliament there came a 
special order from her, " that no laws should be made 
at all in this session/' and it was strictly obeyed. 

But Elizabeth knew when it was best to yield and 
when it was safe to persist. For example, after order- 
ing Strickland, the mover of certain bills touching 
religion, to absent himself from the House and await 
the orders of her privy council, she quietly allowed 
him to return to his seat, on perceiving the temper of 
the Commons. But eight years later (1593), when 
Wentworth and three other members had been sent 
to prison for petitioning the Lord Keeper that the 
Lords would join in supplicating her majesty to 
agree to settle the succession to the crown, she 
answered a motion for their release by telling the 
Commons that she had committed them " for causes 
best known to herself, and that she would release 
them whenever she thought proper, and would be 
better pleased to do it of her own proper motion than 
from their suggestion." D'Ewes, 497. 

It is true that in this instance the offenders had 
not acted in their capacity of members, and their 
petition to the Lord Keeper was not in the course of 
legislation. The Commons might still have claimed 
that their members were not liable to imprisonment 
for such a matter, but their ground was not so strong 
as in Strickland's case, and they submitted. It is 
clear enough that parliamentary privilege was not 
established yet. 

Their worst experiences, however, were to come. 
Elizabeth had no inclination to degrade the manhood 
of her people, and found no pleasure in the mere 
humiliation of their representatives. She rarely 



— 63 — 

touched their privileges, till they touched the twin 
subjects of her jealousy— marriage and supremacy ; 
and more than once, after a sharp beginning, her 
good sense persuaded her to desist. But her successor, 
who had no sense, detested manhood as an insult to 
himself, and regarded the humiliation of the Com- 
mons as their proper and desirable condition. Accord- 
ingly his violations of their right of free speech, were 
limited only by his personal cowardice. Had he been 
as brave as Elizabeth, "privilege" would have become 
extinct, and Parliaments would have ceased. 

The struggle of the Commons with this dynasty of 
insolence and stupidity and falsehood was thoroughly 
dramatic. It was by situations that the necessity was 
developed and the argument was furnished, for an 
independence which should in all respects and by 
every instrumentality, take care of its own interests. 

Throughout this struggle there was no uncertainty 
about their rights; there was simply insecurity for 
want of remedies. In his very first Parliament, 1604, 
they informed James that their privileges and liberties 
were their right and due inheritance, no less than 
their lands and goods; and could not be withheld, 
denied, or impaired, but with apparent wrong to the 
whole estate of the realm; and they explainedjto him 
that their making request, in the entrance of Parlia- 
ment, to enjoy their privileges, was an act of manners, 
and weakened their right no more than their suing 
to the King for their lands by petition. 1 Hatsell, 
227. But James was not afraid of talk — he could 
out-talk any man in the kingdom — and that was all 
the Commons had got to yet. So he berated them 
roundly for their speeches, and, three years after 



— 64 — 

their famous Apology, they fell back to a position in 
which rights and accountability were about equally 
mingled. They made known to him, through their 
Speaker, their earnest desire that he would listen to 
no private reports of their doings, but take his infor- 
mation of the House's meaning from themselves ; that 
he would be pleased to allow such members as he had 
blamed to clear themselves in his hearing, and that 
he would, by some gracious message, let them know 
that they might deliver their opinions in their places 
without restraint or fear ! (Macfarlane's Eng. B. 7, 
C. 1.) Certainty of right and uncertainty of tenure 
could not well come into shai^per antithesis than in 
this prayer. 

They had ample reason for their uncertainty of 
tenure. In 1614, at the close of what was called the 
Addle Parliament, because it did not pass a . single 
bill, James sent five of their members to the Tower 
for " licentiousness of speech." Meantime it is some 
relief to reflect that this very Parliament, by refusing 
to pass any bill until their grievances should be re- 
dressed, had done a great deal towards the establish- 
ment of its rights. When the King dissolved them, 
they had made as long a step for independence as he 
appeared to have done for despotism. 

It was a ^ood while before the direct contest was 
renewed ; for James kept out of their way by not 
having any Parliament for the next six years; but 
at last he had to come back to subsidies, and they 
were confronted once more in the famous Parliament 
of 1621. During a five months recess of that Parlia- 
ment, several eminent persons, and among them Sir' 
Edwin Sandys, " a bold-spoken member of the Lower 



— 65 — 

House," were arbitrarily arrested. The Commons 
knew well enough that these proceedings had been 
provoked by the expression of liberal opinions, and 
they stood by their member. As no prosecution had 
been instituted against him, the way was open. 
Sandys was sick in bed ; so they sent two members 
to wait upon him and hear from his own mouth the 
cause of his arrest. The King, hearing that they 
were about to take this step, wrote to the Speaker 
that it was not for anything done in Parliament, and 
then he added: "but to put them out of doubt of any 
question of that nature that may arise among them 
hereafter, you shall resolve them in our name, that 
we think ourselves very free and able to punish any 
man's misdemeanors in Parliament, as well during 
their sitting as after ; which we mean not to spare 
hereafter, upon any occasion of any man's insolent 
behavior there, that shall be ministered unto us." 1 
Hatsell, 137. The House answered by a remonstrance, 
asserting their undoubted right of free speech as an 
inheritance from their ancestors. To that the King 
replied from Newmarket, saying of their privilege 
We could not allow of the style, calling it their 
ancient and undoubted right and inheritance, but 
could rather have wished that they had said, their 
privileges were derived from the grace and permission 
of our ancestors and us ; for most of them grow from 
precedents, which showeth rather a toleration than 
an inheritance. The plain truth is, we cannot with 
patience endure our subjects to use such anti-monar- 
chial words to us, concerning their liberties, except 
that they had subjoined that they were granted to 
them by the grace and power of our predecessors." 

9 



— 66 — 

He added, that, so long as they contained themselves 
within the limits of their duty, he would be as care- 
ful of their privileges as of his own prerogative, so 
that they never touched on that prerogative, which 
would enforce him or any just King to retrench their 
privileges. 

The issue was now made up: the King asserted 
that the privileges of Parliament existed only by his 
sufferance, and depended entirely on what he might 
consider their good behavior: the Commons, that 
they owned their privileges as much as they owned 
their lands. It was a hot question and the House 
was so thoroughly exasperated that the King took 
fright. His courtiers in that body tried to apologize 
for these expressions as a slip of the pen, and James 
wrote a letter to Secretary Calvert to qualify what he 
had said. But even in that letter, he could not 
abstain from re-asserting that the liberties and privi- 
leges of the House were not of undoubted right and 
inheritance, unless they were so from being granted 
by the grace and favor of his predecessors on the 
throne. 

The temper which these stupendous pretensions 
aroused may be imagined from the fact that a com- 
mittee of the whole house was appointed to meet 
next day, when, with the help of Sir Edward Coke, 
Mr. Noy and Mr. Glanville, they drew up the follow- 
ing Protestation : "The Commons now assembled in 
Parliament, being justly occasioned thereunto, con- 
cerning sundry liberties, franchises, privileges, and 
jurisdictions of Parliament, amongst others not herein 
mentioned, do make this protestation following : — 
That the liberties, franchises, privileges, and jurisdic- 



— 67 — 

tions of Parliament are the ancient and undoubted 
birthright and inheritance of the Subjects of England; 
and that the arduous and urgent affairs concerning 
the King's state, and the defence of the realm, and of 
the Church of England, and the making and main- 
tenance of laws, and redress of mischiefs and griev- 
ances, which daily happen within this realm, are 
proper subjects and matter of counsel and debate in 
Parliament ; and that, in the handling and proceed- 
ing of those businesses, every member of the House 
hath, and of right ought to have, freedom of speech 
to propound, treat, reason, and bring to conclusion 
the same: that the Commons in Parliament have like 
liberty and freedom to treat of those matters in such 
order as, in their judgment, shall seem fittest; and 
that every such member of the said House hath like 
freedom from all impeachment, imprisonment, and 
molestation (other than by the censure of the House 
itself) for or concerning any bill, speaking, reasoning 
or declaring of any matter or matters touching the 
Parliament or Parliament business ; and that, if any 
of the said members be complained of and questioned 
for anything said or done in Parliament, the same is 
to be shown to the King by the advice and assent of 
all the Commons assembled in Parliament, before the 
King give credence to any private information/' After 
a debate which lasted until the then unusual hour of 
five or six in the evening, the Commons entered this 
Protestation upon their journal "as of record." 

This was intolerable insolence, and James' wrath 
overcame his cowardice. He rode up to London 
foaming at the mouth, prorogued Parliament, ordered 
the clerk of the House of Commons to bring him the 



— 68 — 

Journal Book, and with his own hand tore out the 
Protestation. Then in his council-book he caused to 
be entered this : " His Majesty did, in full assembly 
of his council, and in the presence of the judges, de- 
clare the said protestation to be invalid, annulled, 
void, and of no effect." If negativing words could 
make it naught, the protestation was annihilated. A 
few days afterwards he closed their mouths effectually 
by an insulting proclamation of dissolution. 1 Hat- 
sell, 137 ; Macfarlane's Eng. B. 7, anno 1621 ; and 
then he sent Coke and Sir Robert Phillips and Mr. 
Seldon to prison. He could refute the doctrine of 
free speech in that way, if in no other. 

But trouble always disturbed his theory of divine 
power. Three years later, when he was deeply in 
debt, when the Spanish marriage had miscarried, 
when everything had gone wrong, he addressed his 
last Parliament in a tone of moderation and sweetness. 
He told them that he remembered and regretted past 
misunderstandings ; that he hoped they would judge 
him charitably, as they wished to be judged, and that 
he earnestly desired to do his duty and manifest his 
love to his people. In plain English, he wanted 
money dreadfully. 

But this lull in the contest meant nothing; or 
rather it only meant that freedom was to come by 
contest. The Stewart devil was a monk only while 
he was sick. And there were other Stewarts. James 
died in the next year, but he only made room for a 
more serious and determined fool, a fool on principle. 

Charles went to work promptly and kept on in- 
dustriously. Immediately after his coronation, when 
the Commons were getting ready to impeach Bucking- 



— 69 — 

ham, he said to them : " I must let you know that I 
will not allow any of my servants to be questioned 
amongst you, much less such as are of eminent place 
and near unto me." The Commons replied that it 
was "the ancient, constant and undoubted right and 
usage of Parliaments to question and complain of all 
persons, of what degree soever, found dangerous to 
the commonwealth in abusing the power and trust 
committed to them by the Sovereign." 

They went on with their impeachment and pre- 
sented their articles to the Lords. Two days after- 
wards Sir John Eliot and Sir Dudley Digges, two of 
their managers who had been especially severe in 
their denunciations, were called out of the House, as 
if the King had sent for them, and were carried by 
water to the Tower. It was given out that their 
arrest was for high treason, but Charles explained to 
the House of Lords : " I have thought fit to punish 
some insolent speeches lately spoken. I have been 
too remiss hitherto in punishing such speeches as 
concern myself." The Commons debated this vio- 
lation of their privileges with closed doors, and came 
to a resolution to stay all business till satisfaction 
was given. Courage and a cool head triumphed ; 
Eliot and Digges returned to their seats in the House. 
Nevertheless the King stopped their impeachment by 
dissolving Parliament. He had been little more than 
a year on the throne, and had already defeated a 
constitutional power and violated the most essential 
privilege of the House of Commons. 

In that same session he had told them to remember 
that Parliaments were altogether in his power for their 
calling, sitting, or dissolution ; and that therefore, as 



— 70 — 

lie should find the fruits of them good or evil, they 
were to be or not to be. But in less than two years 
Buckingham's disastrous expedition into France, and 
the want of money, compelled him to confront the 
most respectable House of Commons that had ever 
convened. The "fruit" this time was the famous 
Petition of Right. He tried to cheat them by a 
pretended assent, then assented squarely, and then 
explained it away. Finally he prorogued the Parlia- 
ment for some months, and of course violated that 
statute in the meantime. 

When they came together, after another proro- 
gation, in 1629, the Commons would talk of nothing 
but religion, illegal taxes, and arbitrary imprison- 
ments. The King insisted that they should talk first 
of his subsidies, and finding that they would not, 
adjourned them for a few days by his peremptory 
command. It was his prerogative to dissolve and 
prorogue Parliaments, but it was their privilege, so 
long as a session continued at all, to &x their own 
adjournments. Nevertheless they quietly obeyed. 
A few weeks later he tried that device again, and 
then they understood themselves better. In the 
midst of a debate Mr. Speaker Finch announced to 
them a message commanding him "to adjourn the 
House until Tuesday come seven-night following ;' : 
but they kept their seats, saying they had somewhat 
to finish. Eliot produced a remonstrance against the 
illegal laying of tonnage and poundage, which he 
desired the Speaker to read. Finch pleaded that the 
King had adjourned the House. The clerk was 
called on, and he too refused. Then Eliot read it 
himself and demanded the question. The Speaker 



— 71 — 

only repeated the King's command, and proceeded to 
rise. But the English blood was up now, and Hollis, 
Valentine, and other members of that stamp, held 
him in his chair; some of the patriots at the same 
time locking the doors and bringing the keys up to 
the table. The courtiers rushed to release the pinioned 
Speaker, but they were too weak, and poor Finch sat 
still at last, actually weeping, and crying that he 
dared not put the question because he had the King's 
commands. Of course it was impossible to make him 
do it, and, knowing it was their last opportunity to 
express their sentiments, they hastily drew up a pro- 
test. While Hollis was reading it amid the cheers of 
the House, the King had hurried down to the House 
of Lords, expecting to find the Commons adjourned. 
Not seeing the Speaker, he sent a messenger to bring 
away the Sergeant with his mace. That would have 
adjourned the House ; but the members stopped the 
Sergeant and took from him the keys of the doors. 
Then the King, seeing no Sergeant, dispatched the 
Usher of the Black Kod to call up the Commons for 
a dissolution; but the Commons would not let the 
Usher in. Charles sent for the Captain of the Pen- 
sioners and his guards, and ordered them to force the 
door — but they came too late. The Commons had 
voted their protest, had adjourned themselves to the 
tenth of March, and were gone. 

When they met again, the King made an end of 
that Parliament without even inviting the Commons 
to the ceremony of dissolution ; telling the Lords, in 
his speech, that the offending members were vipers, 
who must look for their rewards. 

He kept his word better this time than he had 



72 



done about the Petition of Right. Eliot, Hollis, 
Selclen, Valentine, Coriton, Hobart, Hay man, Long, 
and Stroud, the members who had been active in 
getting up the protest and keeping the Speaker in 
his chair, were summoned before the privy-council 
and sent to the Tower. 

Charles was determined to proceed against them in 
the Star Chamber, and Lord Keeper Coventry set 
about preparing the way for him by drawing an 
opinion from the Judges. Those learned persons 
were complacent enough to say, "that freedom of 
speech only extends to things debated in Parliament 
in a parliamentary course, and that a Parliament man, 
committing an offence against the King or council in 
Parliament, not in a Parliament way, may be punished 
for it after the Parliament ended ; for the Parliament 
shall not give privilege to any one contra morem 
parliamentarium exceeding the bounds of his place 
and duty." 2 Lives of the Chanc. 535 ; 1 Lives of the 
Ch. Just. 385. And to meet the special case, they 
added, that, " by false slanders to bring the Lords of 
the council and the judges, not in a parliamentary 
way, into the hatred of the people, and the Govern- 
ment into contempt, was punishable, out of Parlia- 
ment, in the Star Chamber, as an offence committed 
in Parliament beyond the office, and beside the duty 
of a Parliament man." 2 Lives of the Ch. Just. 385. 

The imprisoned members sued for their writs of 
habeas corpus, and were brought before the King's 
Bench. The Judges had come to the opinion that 
they were entitled to bail, but the King sent for them 
and commanded them to deliver no opinion until they 
should have consulted the other Judges ; and so, by 



— 73 — 

quibbles and dodges, the matter was held undecided 
for that term, and the prisoners were kept in close 
custody during the whole of the long vacation which 
ensued. 

Toward the end of the vacation Chief Justice Hyde 
and Judge Whitelock were sent by the Lord Keeper 
down to Hampton Court. The King told them he 
was willing the imprisoned members should be ad- 
mitted to bail, notwithstanding their contumacy in 
refusing to declare that they were sorry for having 
offended him; and that he should abandon the Star 
Chamber proceedings and prosecute them in the 
King's Bench. On the first day of Michaelmas Term 
they were brought into court, and ordered, not only 
to find bail for the present charge, but sureties for 
their good behavior in future. Of course they refused 
to give sureties, but were ready with bail for their 
appearance. Thereupon they were all sent back to 
the Tower. 

Then came the prosecution. The Attorney General 
filed an ex-officio information in the King's Bench 
against Sir John Eliot, Mr. Hollis and Mr. Valentine. 
Eliot was charged with words uttered in the Com- 
mons' House, and particularly with saying " that the 
privy council and judges had conspired to trample 
under foot the liberties of the subject." Hollis and 
Valentine were charged with the tumult on the last 
day of the session, when Speaker Finch was held in 
his chair. The defendants pleaded to the jurisdiction 
of the court : " Forasmuch as these offences are sup- 
posed to have been done in Parliament, they ought 
not to be punished in this court, or any other except 
in Parliament." Without waiting to hear counsel, 

10 



— 74 — 

Chief Justice Hyde at once said, " that all the Judges 
had already resolved with one voice, that an offence 
committed in Parliament, criminally or contemptu- 
ously, the Parliament being ended, rests punishable 
in the Court of King's Bench, in which the King by 
intendment sitteth." Counsel for the defendants in- 
sisted on being heard, but they might as well have 
been silent. Hyde treated their arguments with scorn, 
and concluded by observing: "As to what was said, 
that an inferior court cannot meddle with matters 
done in a superior, true it is that an inferior court 
cannot meddle with the judgments of a superior court; 
but if particular members of a superior court offend, 
they are oft-times punishable in an inferior — as if a 
judge shall commit a capital offence in this court he 
may be arraigned thereof at Newgate. The behavior 
of Parliament men ought to be parliamentary. Parlia- 
ment is a higher court than this, but every member 
of Parliament is not a court, and if he commit an 
offence we may punish him. The information charges 
that the defendants acted unlawfully, and they could 
have no privilege to violate the law. No outrageous 
speeches have been made against a great minister of 
state in Parliament that have not been punished." 
1 Lives Ch. Just. 386. The court overruled the plea 
to its jurisdiction, and the prisoners refused to put 
in any other. On the last day of the next term 
judgment was given against them upon nihil dicit. 
Mr. Justice Jones assured them that, heavy as was 
their offence, their punishment should be laid on 
"with a light hand;" and then he delivered the fol- 
lowing sentence: 1. That every of the defendants 
shall be imprisoned during the King's pleasure. 



— 75 — 

Sir John Eliot to be imprisoned in the Tower of 
London, and the other defendants in other prisons. 
2. That none of them shall be delivered out of prison 
until he give security in this court for his good 
behavior, and have made submission and acknowl- 
edgment of his offence. 3. Sir John Eliot, inasmuch 
as we think him the greatest offender, and the ring- 
leader, shall pay to the King a fine of 2000/., and 
Mr. Hollis a fine of 1000 marks ; and Mr. Valentine, 
because he is of less ability than the rest, shall pay a 
fine of 500/." Macfarlane's Eng. B. 7. (1629.) 

All of the defendants except Sir John Eliot were 
liberated on bail, after a detention of eighteen months. 
When he had lain four years in the Tower, his health 
began to decline rapidly, and his friends prevailed 
upon him to petition the King. Charles' only answer 
to that petition was : " It is not humble enough." 
Then he sent another by his son, expressing his 
hearty sorrow for having displeased his majesty, and 
humbly beseeching him once again to command the 
judges to set him at liberty ; and when he had re- 
covered his health he might return back to his prison, 
there to undergo such punishment as God had allotted 
him. The lieutenant of the Tow r er took offence at his 
sending the petition by another hand than his ; but 
offered to deliver another for him, if he would humble 
himself before his majesty, acknowledging his fault. 
Eliot, thanking him for his friendly advice, replied 
that his spirits had grown feeble and faint ; that when 
he recovered his former vigor he would think about 
it. And so, as brave on a sick bed as other men 
upon their feet, he died, a prisoner in the Tower, on 
the 27th of November, 1632. 



— 76 — 

For eleven long years of illegality and torture and 
swindling misgovernment, the voice of Parliament 
was not beard again. But when they came together 
in 1640 they had good memories. On the second 
day of the session, Pym delivered a speech in which 
he s'aid: "The first of grievances are those which, 
during this interval of eleven years, have been directed 
against the liberties and privileges of Parliament ; " 
and on the following day the House voted that the 
proceedings remaining upon record in the King's 
Bench and Court of Star Chamber against Sir John 
Eliot, Mr. Hollis, and the other imprisoned members 
of the Parliament of 1628, should be sent for and 
referred to a committee. Two days afterwards they 
resolved that the conduct of Mr. Speaker Finch, in 
that Parliament, in not obeying the commands of the 
House, and his adjournment by command of the 
King, were breaches of privilege. They persisted in 
talking about grievances before they would talk about 
money ; and the swift end of it was a dissolution after 
a fruitless session of about three weeks. 

That amazing person, his Majesty, was blind to the 
fast quickening current and deaf to the cataract below. 
As if the imprisonment of members for words spoken 
in their own House had not made bad blood enough ; 
as if Eliot had been forgotten — he committed several 
members the very day after the dissolution. Their 
speeches and official action in Parliament were. the 
only offences charged against them. Finally, in 1642, 
he reached his climax, in attempting to bring Hollis, 
Hazelrig, Pym, Hampden, and Strode, the five leaders 
of the Commons, before the House of Lords, to be 
tried on a trumped up charge o£ levying war against 



— 77 — 

him. A broken promise, a fiction, a lie of some 
sort, was almost his sole device. Finding the Lords 
troubled with doubts, he went himself to the Com- 
mons' House, attended by his gentlemen-pensioners, 
and followed by hundreds of courtiers, officers, and 
soldiers of fortune, most of them armed with swords 
and pistols, to seize the five members in their seats. 
But they were gone. Next day the Commons re- 
moved to the City and sat in Guildhall. On the day 
following, accompanied this time only by his usual 
attendants, the King sought them there. 

As he rode through the streets, he was saluted with 
cries of "privileges of Parliament, privileges of Parlia- 
ment," and at the door of Guildhall he was confronted 
by the Common Council, who had assembled as friends 
of the Commons. To these gentlemen he dropped 
his haughty tone, but he demanded their assistance 
in bringing him the five members. He went back 
without them, and then by proclamation he com- 
manded the magistrates to apprehend and carry them 
to the Tower. London answered by an offer of her 
sailors and famous apprentices to escort the Commons 
safely back to Westminster, and they returned in a 
triumphant procession of boats, watched by their troops 
along the shore. The King had left London the day 
before, not to return till he came as a prisoner. 
Rushworth, Vol. 4, p. 474. 

But the Commons were not done yet with the 
invasion of their privileges. They impeached Mr. 
Attorney General Herbert, by whom the accusation 
against their members had been presented * to the 
Lords. The gist of his offence was " a breach of 
privilege," and the fact that he acted by express com- 



— 78 — 

mand of the King did not save him. The sentence 
of the Lords was : " That he was disabled and made 
incapable of being a member, assistant or pleader in 
either house of Parliament, * * and that he should be 
committed forthwith to the Fleet." 

Just a hundred years ago, the Commons had secured 
the King's assent to their proceedings in punishing 
an act which, he was careful to say, touched his 
dignity as well as their own. By suffering and out- 
rage, they had reached a point when an attack upon 
their privileges by the King himself could be pun- 
ished in the person of his instrument. Power had 
been forced upon them by denial of their rights. 

Need any further evidence be offered, to prove that 
it was only the necessity of circumstances, of a situa- 
tion peculiar to that legislative body, which brought 
about the concession of an independent jurisdiction 
to protect their own privileges, and afterwards drove 
the Commons to enlarge that jurisdiction ? Is there 
any room to doubt that it was conceded substantially 
because the law of the realm, the Constitution, had 
failed to provide, and in the end was unable to pro- 
vide, any of the means to protect them against the 
obstructions to which they were exposed? Or that 
they were forced to enlarge it, because notwithstand- 
ing its first extent, their privileges were not merely 
unprotected but actively assailed by the co-existing 
powers of the State ? 

When liberty of speech was denied by the sovereign, 
and punished as a crime by the Courts ; when their 
personal liberty was violated by arbitrary arrests, and 
the judges dared not bail them without the consent of 



— 79 — 

their master ; when even these intimidated tribunals 
were put aside, and in order to make sure work, their 
members were tried by an unconstitutional court 
which cared still less for law- — it became simply a 
question of existence. In all England no voice but 
their own was ready to affirm their rights, no arm 
but their own would move to protect them. Amid 
•such antagonisms it was absolutely inevitable that 
thev should undertake to determine for themselves 
when their privileges were invaded; and this neces- 
sity settled all the consequences. 

It compelled a choice, whether to be a defenceless 
party before other tribunals, or to be themselves a tri- 
bunal. Not that they could take the attitude of a 
tribunal towards the power whose conduct had pro- 
duced the necessity ; but when the claim to judge of 
their own privileges was once made, it followed that, 
although they could only argue and protest to the 
Sovereign, they must, in all other directions where 
they had power to do so, insist upon submission to 
their judgment. Power to punish violations of privi- 
leges so adjudged, was part of the position into which 
they were forced, (a) 

(a) Lord Campbell, who at all times sturdily maintained the power of 
the House of Commons to punish for contempts, did not see fit to claim for 
it an inherent necessity. When he was Attorney General he described its 
true ground in the following words : " Privilege is given to the House of 
Commons to be exercised against the Crown and the House of Lords ; unless 
the Commons were themselves the tribunal by which their privilege is to be 
judged, it would have been abolished long ago. The necessity of preserving 
it from interference by the Courts of Law is not to be estimated from the 
present improved state of the courts. The law of privilege was settled when 
Judges were the creatures of the Crown, and liable to be discarded if not obe- 
dient, and when the Kings themselves used to interfere in the administration of 
justice ; which they did personally and as judges in ancient times, and afterwards 
by letters to the judges, directing them how to act in particular cases ; a practice 



— 80 — 

If it be true, then, that this power of the Commons 
to adjudicate their own rights and punish their own 
wrongs was conceded to them, effectively, in order to 
supply a defect of the Constitution, and grew by rea- 
son of its violations, what becomes of the argument 
that a similar judicature is necessarily incident to the 
existence of every supreme legislative assembly? 
What is there in this example, which has always been 
held up to us, which proves that such a power is con- 
genital and inherent in all such bodies ? Is it the fact 
that the Commons lived nearly three centuries with- 
out possessing it ? It became necessary to that body 
because the Constitution which established it could 
not furnish it any other assured protection ; is it to be 
implied that it belongs to legislative bodies established 
by a Constitution which is careful at the same time to 
authorize perfectly assured and absolutely sufficient 
means by which they could be protected ? Is it seri- 
ously contended that a power which accrued by reason 
of a scramble for life among the forces of the State in 
England, is essential to the existence of legislative 
bodies under a Constitution which forbids such a con- 
test by defining the limits of authority and rendering 
encroachments impossible ? It was not according to 
the methods of the common law to act upon or affirm 

several times checked by Statute, as, in particular, by Stat. 2 Edw. 3, c. 8, 
and 18 Edw. 3, c. 4. And although the judges are now independent of the 
Crown, there may still be a proper constitutional jealousy lest, at some time, 
a desire of popularity, or of extending the jurisdiction of the Courts, should 
lead them to decisions against wholesome and useful privilege, as mischievous 
as those fomerly given in submission to the King's authority. But during 
the struggles of the House of Commons against the Crown, as in the reigns 
of Elizabeth, James I, and Charles I, the privileges of the House would 
clearly not have survived, if they had depended on the ruling of judges." 
Argument in Slockdale vs. Hansard, 9 Adol. & Ell. 29. 



— 81 — 

any general principle in giving this power to the 
House of Commons ; in granting jurisdictions and 
powers, that law never pretended to do anything more 
than meet the exigencies of English life ; but if this 
particular grant is susceptible of any generalization, it 
is only to this extent : When the constitution under 
which a legislative assembly exists, refuses or fails to 
provide for its protection by authorizing adequate 
means of punishing its wrongdoers ; a fortiori, when 
such an assembly is compelled to struggle for existence 
against the other powers of the State, it then becomes 
necessary, not only in fact but in contemplation of law, 
that it shall take into its own hands the means of pro- 
tection by punishment. 

In attributing common-law powers to institutions 
in this country, the method of argument has been, that 
the powers of English common-law institutions belong, 
by an implication of necessity, to institutions of a simi- 
lar character and similarly situated here. Even ac- 
cording to this theory, it will be time enough to make 
the implication when the similar situation occurs. 

With sincere deference to the great authorities who 
have so long argued from this premise, it is submitted 
that any reference to the political necessities of the 
time of the Tudors and the Stewarts, is only a delusive 
anachronism. The impropriety of insisting that 
obsolete necessity is inherent and vital, has been in- 
dicated to us by the very body which first asserted it, 
and in connection with this very matter of privilege. 
In the time of James I, no privilege was more 
essential to the independence of the House of Com- 
mons, than its function of determining all questions 
touching the elections and returns of its members ; 

11 



— 82 — 

yet, in the time of Victoria, at the instance of that 
House, jurisdiction to determine controverted elec- 
tions has been substantially turned over to the Courts 
of Justice. By the " Elections Petitions and Corrupt 
Practices at Elections " Act of 1868, the trial of such 
questions in England was confided to the Court of 
Common Pleas at Westminster; in Ireland, to the 
Court of Common Pleas, at Dublin; and in Scotland, 
to the Court of Sessions. By this Act they declared 
that it was not essential that they should themselves 
apply the remedies, even in a matter which affected 
their composition. 

And by another Act, passed almost exactly a cen- 
tury earlier, Parliament had revised and overruled 
the ancient opinion as to the very amount of protec- 
tion which was necessary to its members. From the 
earliest days, it had been a part of a member's pro- 
tection that his domestics should be included in the 
privilege from arrest ; and if usage could be said to 
establish a conclusion of law as to what was necessary, 
it had done so in this matter, quite as much as in 
respect to the manner in which the personal privilege 
of the member himself, or the common privilege of 
the assembly, should be protected. Yet, by the Act 
of 10 Geo. 3, ch. 50, the privilege from arrest was 
taken away from members' servants. 



We have thus far referred only to historical mater- 
ials. Let us inquire next how the question, whether 
this power accrued by legal necessity, has been treated 
by the judicial authorities. 



— 83 — 

Probably, the notion that it was based upon an 
inherent necessity, of which the law must take notice, 
was not unfamiliar, even before its announcement 
by Lord Ellenborough. Chief Justice De Grey so 
characterized it in 1771, in Brass Crosby's case. 3 
"Wilson, 188. But it was Lord Ellenborough who 
first gave to it judicial standing. In Burdett vs. 
Abbott he said: "The mere power of removing actual 
impediments to its proceedings would not be sufficient 
for the purposes of its full and efficient protection. 
It must also have the power of protecting itself from 
insult and indignity wherever offered, by punishing 
those who offer it. * * And would it consist with the 
dignity of such bodies, or what is more, with the 
immediate and effectual exercise of their important 
functions, that they should wait the comparatively 
tardy result of a prosecution in the ordinary courts 
of law, for the vindication of their privileges from 
wrong and insult ? The necessity of the case would 
therefore, upon principles of natural reason, seem to 
require that such bodies, constituted for such purposes, 
and exercising such functions as they do, should possess 
the powers which the history of the earliest times 
shows they have in fact possessed and used." 

It is amazing that so eminent a judge should so 
ignore the plain facts of constitutional history, and 
confound a necessity which was produced by circum- 
stances, with inherent necessity. After he had proven 
that this power of the Commons was established by 
usage, and affirmed by statute, — he might have said 
it began by what was equal to a statute — such specu- 
lations upon its origin were uncalled for; and, as they 
were nothing more than speculations, they should 



— 84 — 

have had no influence over later decisions. They 
laid down a proposition, however, which habit and 
reverence made acceptable, and they did have in- 
fluence in a tribunal where this question of origin was 
not irrelevant, but must be considered. 

Burdett vs. Abbott was supposed to have demon- 
strated that every supreme legislature, established 
where the common law of England was in force, was 
invested with power to punish contempts offered to 
it, on the ground, that such power was a necessary 
legal incident to its functions. Accordingly, in 1836, 
the Judicial Committee of the Privy Council held, in 
the case of Beaumont vs. Barrett, 1 Moore's Privy 
Council Cases, 59, that the House of Assembly of 
Jamaica, being the supreme legislative assembly of 
that island, had that power. 

The appellant had been committed, on the Speaker's 
warrant, for a breach of the privileges of the House 
in publishing certain paragraphs in a newspaper. 
Baron Parke, delivering the opinion of the Committee, 
said : " It would appear, I think, to be inherent in 
every legislative assembly that possesses a supreme 
legislative authority, to have the power of punishing 
contempts ; and not merely such as are a direct ob- 
struction to its due course of proceeding, but such also 
as have a tendency indirectly to produce such an 
obstruction ; in the same way as the Courts of record 
may not only remove or punish persons who actually 
are interrupting their functions, but may also repress 
those who indirectly impede the administration of 
Justice by disparaging or weakening their authority." 

This decision was the first fruit of Lord Ellen- 
borough's dictum; and it is noteworthy as an example 



— 85 — 

of the mischief that may be done by uncalled for 
judicial speculations. 

Five years later, a similar question came before the 
Judicial Committee of the Privy Council, in the case 
of Kielley vs. Carson and others, 4 Moore's Privy 
Council Cases, 63, when the same learned judge, re- 
ferring to the earlier decision of the Committee in 
Beaumont vs. Barrett, said : " Their Lordships do not 
consider that case as one by which they ought to be 
bound in deciding the present question. The opinion 
of their Lordships, delivered by myself immediately 
after the argument closed, though it clearly expressed 
that the power was incidental to every Legislative 
Assembly, was not the only ground on which that 
judgment rested, and, therefore, was in some degree 
extra-judicial ; but, besides, it was stated to be, and 
was, founded entirely on the dictum of Lord Ellen- 
borough in Burdett vs. Abbott; which dictum we all 
think cannot be taken as an authority for the abstract 
proposition, that every legislative assembly has the 
power of committing for contempts." 

The case of Kielley vs. Carson, which, notwith- 
standing the slight reservation that Beaumont vs. 
Barrett went also on another ground, overruled that 
decision, was, on account of the importance of this 
question, ordered to a second argument, and was then 
heard by a committee which included Lyndhurst, 
Lord Chancellor ; Denman, Chief Justice of Queen's 
Bench; Abinger, Chief Baron of the Exchequer; 
Cottenham, late Lord Chancellor ; Campbell, Chan- 
cellor of the Duchy of Lancaster ; Shadwell, Vice- 
chancellor ; Erskine, Justice of Common Pleas ; 
Parke, Baron of the Exchequer, and Dr. Lushington, 



— 86 — 

Judge of the Admiralty Court. Certainly it must be 
accepted as a well considered case, and of the highest 
authority. Baron Parke, in delivering the opinion 
of the Committee, said : " The main question raised 
by the pleadings was, whether the House of Assembly 
[of New Foundland] had the power to arrest and 
bring before them, with a view to punishment, a 
person charged by one of its members with having 
used insolent language to him, out of the doors of the 
House, in reference to his conduct as a member of 
the Assembly — in other words, whether the House 
had the power, such as is possessed by both Houses 
of Parliament in England, to adjudicate upon a con- 
tempt or breach of privilege. 

" Their Lordships are of opinion, that the House 
of Assembly do not possess the power of arrest, with 
a view to adjudication on a complaint of contempt 
committed out of its doors. 

" Their Lordships see no reason to think, that in 
the principle of the common law, any other powers 
are given them [the local legislatures] than such as 
are necessary to the existence of such a body, and the 
proper exercise of the functions which it is intended 
to execute. These powers are granted by the very 
act of its establishment ; an act which on both sides 
it is admitted, it was competent for the Crown to per- 
form. This is the principle which governs all legal 
incidents : Quando lex aliquid concedit, concedere 
videtur et illud, sine quo res ipsa esse non potest. 
In conformity to this principle we feel no doubt that 
such an assembly has the right of protecting itself 
from all impediments to the due course of its pro- 
ceedings. To the full extent of every measure which 



87 



it may be really necessary to adopt, to secure trie free 
exercise of their legislative functions, they are justi- 
fied in acting, by the principle of the common law. 
But the power of punishing any past misconduct, as. 
a contempt of its authority, and adjudicating upon 
the fact of such contempt and the measure of punish- 
ment, as a judicial body, irresponsible to the party 
accused, whatever the real facts may be, is of a very 
different character, and by no means essentially neces- 
sary for the exercise of its functions by a local legis- 
lature, whether representative or not. All these 
functions may be well performed without this extra- 
ordinary power, and with the aid of the ordinary 
tribunals to investigate and punish contemptuous 
insults and interruptions." 

In 1866, the question, whether a grant of legis- 
lative power included a grant of power to punish 
for contempts, came again before the Privy Coun- 
cil, in the case of Doyle vs. Falconer, Law Eep. 
1 Privy Council Cases, 328 ; and this time it came 
in a shape which would have secured an affirmative 
answer, if such an answer could be given in any 
case whatever. 

A member of the Lower House of Assembly of 
Dominica, having been guilty of disorderly and con- 
temptuous conduct in the course of debate and in the 
face of the House, was committed upon the Speaker's 
warrant, for contempt. The case at bar was an action 
for trespass and false imprisonment. 

After discussing the proposition, that the Assembly 
had the power of commitment, because its functions 
were analogous to those of the House of Commons, 
which possessed that power, Sir James Colville, de- 



88 — 



livering the opinion of the Committee, said: "If, 
then, the power assumed by the House of Assembly 
cannot be maintained by analogy to the privileges of 
the House of Commons, or the powers of a court of 
record, is there any other legal foundation on which 
it may be rested ? It has not, as both sides admit, 
been expressly granted. The learned counsel for the 
appellant invoked the principle of the common law ; 
and, as it must be conceded that the common law 
sanctions the exercise of the prerogative by which the 
Assembly has been created, the principle of the com- 
mon law, which is embodied in its maxim Quando 
lex aliquid concedit, concedere videtur et Mud, sine 
quo res ipsa esse non potest, applies to the body so 
created. The question, therefore, is reduced to this: 
Is the power to punish and commit for contempts 
committed in its presence, one necessary to the exist- 
ence of such a body as the Assembly of Dominica, 
and the proper exercise of the functions which it is 
intended to execute ? It is necessary to distinguish 
between a power to punish for a contempt, and a power 
to remove any obstruction offered to the deliberations 
or proper action of a legislative body during its sit- 
tings ; which last power is necessary for self-preser- 
vation. If a member of a colonial House of Assembly 
is guilty of disorderly conduct in the House while 
sitting, he may be removed or excluded for a time, or 
even expelled; but there is a great difference between 
such powers and the judicial power of inflicting a 
penal sentence for the offence. The right to remove 
for self-security is one thing; the right to inflict 
punishment is another. The former is, in their lord- 
ships' judgment, all that is warranted by the legal 



— 89 — 

maxim that has been cited, but the latter is not its 
legitimate consequence." 

It is worth while to call attention to the peculiar 
position of Lord Denman in this matter. Only a 
year before the decision of Kielley vs. Carson, he had 
said, in Queen vs. Gossett, 3 Perry & Dav., 362 : " a 
deliberative assembly must have the power in itself 
to vindicate its privileges, which can only be by com- 
mitting for contempt ; " and in the Sheriff of Middle- 
sex, 11 Adol. & Ell., 273, he had said: " Representa- 
tive bodies must necessarily vindicate their authority 
by means of their own ; and those remedies lie in the 
process of committal for contempt." But he fully 
concurred with the Committee in Kielley vs. Carson, 
where it was said by Baron Parke, that ■" the reason 
why the House of Commons has this power is not 
because it is a representative body with legislative 
functions, but by virtue of ancient usage and pre- 
scription; the lex et conseuetudo Parliament!, which 
forms a part of the Common Law of the land, and 
according to which the High Court of Parliament, 
before its division, and the houses of Lords and 
Commons, since, are invested with many peculiar 
privileges, that of punishment for contempts being 
one." When two such judges as Denman and Parke 
abandon opinions recently announced by them, their 
later conclusions must be supposed to have been con- 
sidered with great deliberation. If authority can 
settle such questions, this circumstance, and the num- 
ber and eminence of the judges who composed the 
Judicial Committee in the case of Kielley vs. Carson, 
make the decision of that tribunal absolutely con- 

12 



— 90 



elusive as to the ground on which the jurisdiction of 
the House of Commons stood. 

It is to be observed that these decisions not only 
deny the general proposition that power to punish 
contempts is held by the common law to be inherent 
in legislative assemblies, but they deny the specific 
proposition that the power exercised by the House of 
Commons in contemplation of that law, stood upon 
the principle of self-protection. And it is particularly 
important to observe that, while Lord Ellenborough's 
dictum, in Burdett vs. Abbott, claimed that this power 
was incident ex necessitate and for the purpose of self- 
protection, the judgment in that case placed it upon a 
different ground. In justifying the breaking of Bur- 
dett's outer door, all of the judges rested the power 
of the House upon the principle that the proceedings 
were in prosecution of a public offence. That power 
to do an act which was justifiable only because it 
concerned the public interest, could not originate in 
the special right of ^//-preservation, needs no argu- 
ment. On its face it is a purely jurisdictional power. 

It should now be considered to be settled, therefore, 
by the highest English authority, that the power of 
the House of Commons to adjudicate and inflict pun- 
ishment for contempts was, in the language of Baron 
Parke, merely one of "many peculiar privileges" 
which belonged to that body ; and that it existed by 
authority of positive law and not ex necessitate. 

The force of these Privy Council decisions cannot be 
diminished by alleging that they relate to the powers 
of colonial, or what the Committee called "local" legis- 
latures. The question under consideration assumed 
its broadest possible form ; it was : What powers does 



91 



the common law of England understand to be neces- 
sarily included in the establishment of a legislative 
assembly and in a grant of " legislative power ?" Of 
course, in construing such a grant, the dimensions of 
the grantee cannot be material. There might be sub- 
jects about which a local legislature had no authority 
to legislate at all, just as there are subjects about which 
the Congress of the United States cannot legislate ; but, 
in both cases, the power actually given is general 
legislative power. And as to the matter of protection, 
the necessity of a colonial legislature must be, in con- 
templation of law, precisely the same as the necessity 
of independent legislatures. When the functions of a 
legislative body are those of government, affecting the 
peace, good order, property, safety, and personal liber- 
ties of the community which it governs, it must be 
just as necessary that it should be undisturbed by 
obstructions of any kind, as if those functions were 
imperial. 

But the consideration of chief importance in the 
present discussion is, that the Privy Council were 
called upon to determine what powers the common 
law of England had concluded to be necessarily com- 
prehended in a grant of legislative power, and that 
they have decided that it had not concluded that power 
to inflict punishment was so comprehended. 

Are we any longer at liberty, then, to insist that 
the necessity of this power is a conclusion of the 
common law, and to found implications upon that 
proposition ? 



— 92 — 

2. We come now to the precedent of the Superior- 
Courts of Justice, which has been relied upon, as 
establishing a conclusion that the principle of self- 
protection includes, in the cases of certain bodies, 
power to secure that protection by punishment. 

The meaning of this reference to the courts must be, 
that such use of the power establishes a conclusion of 
law that it is necessary to self-protection, not only in 
that case, but in analogous cases; and that the case of a 
legislative body is analogous. We have therefore to 
consider, on what ground this power of the Superior 
Courts in England originally stood ; whether, namely, 
it accrued to them on the principle of self-protection, 
or whether they exercised it merely as a function, 
vested in them by the common law just as all their 
other functions were vested in them, and as a mat- 
ter of jurisdiction. 

Blackstone, whose reasons for the law are apt to be 
accepted as having the same authority with his state- 
ment of the law, has been understood to affirm that 
the courts took this power incidentally, and because 
otherwise they could not exercise the functions speci- 
ally vested in them. After enumerating the contempts 
which they might punish, he says : " The process of 
attachments for these and the like contempts must ne- 
cessarily be as ancient as the laws themselves ; for the 
laws, without a competent authority to secure their ad- 
ministration from disobedience and contempt, would 
be vain and nugatory. A power, therefore, in the 
Superior Courts of Justice, to suppress such contempts 
by an immediate attachment of the offender, results 
from the first principles of judicial establishments, 
and must be an inseparable attendant upon every 



— 93 — 

superior tribunal. Accordingly we find it actually 
exercised as early as the annals of our law extend." 
4 Bl. 286. 

This is a very strong statement of the necessity that 
such a power should be vested somewhere ; and the 
learned Commentator very distinctly asserts that it 
■ results from the first principles of Judicial estab- 
lishments;" and that it should be "an inseparable 
attendant upon every superior tribunal." But this is 
very far from an assertion that it was an implied 
power of self-preservation ; since so accurate a writer 
could not fail to perceive that, in that case, the power 
should be an attendant upon inferior, as well as upon 
superior tribunals. Whether consciously or not, he 
was only occupied in pointing out that kind of neces- 
sity which induced the grant of the power ; and has 
affirmed nothing more than that the necessity for 
" a competent authority," to secure the administration 
of the laws from disobedience and contempt, required 
the grant of summary power to the superior tribunals. 
That he based their possession of such power upon 
positive law, and not upon the doctrine of self- 
preservation, or legal necessity, is shown from the 
context; for he immediately adds that "though a 
very learned author" (Gilbert, Hist. C. P. Ch. 3) 
"seems inclinable to derive the process from the 
Statute of Westminster 2, 13 Edw. I, c. 39, * * * yet 
he afterwards more justly concludes, that it is a part 
of the law of the land, and, as such, is confirmed by 
the Statute of Magna Charta." 4 Bl. 286. 

All that Blackstone absolutely knew of this power, 
and all that can be known of it, is, that from ancient 
times it was, by the law of the land, a power of certain 



— 94 — 

courts in England. How it came to be so, is a matter 
of argument, not of authority. Nevertheless the 
opinion of the great Commentator is entitled to the 
very highest consideration, and it plainly stands 
against the pretension that the power of each of those 
courts to punish any contempt offered to it, accrued 
as part of the mere right of self-protection, and with- 
out the help of any specific grant. 

If we turn to the history of the power, and consider 
the line which separated the courts which did, from 
those which did not possess it, we shall find the 
clearest indications that it was regarded as a question 
of jurisdiction, just as the other subjects on which 
the courts might respectively act were so regarded. 

In the first place, we know that power to punish 
officers charged with the administration of the law 
under their control, and to punish contempts com- 
mitted by any persons in their presence, was vested 
in the Sheriff's torn, in courts-leet, and in the coro- 
ner's court ; Hawkins P. C, b. 2, c. 1, Sec. 14 ; c. 9, 
Sec. 41; c. 10, Sees. 1, 17; c. 11, Sec. 1. Griesly's 
case, 8 Coke, 38; Garnett vs. Ferand, 6 Barn. & 
Cress., 625 ; 3 Bl. 35 ; that it was not vested in courts- 
baron, hundred-courts, or county-courts, 3 BL, 25, 
33-35 ; and that the former were courts of record, 
while the latter were courts not of record. 4 BL, 273 ; 
Hawkins, b. 2, c. 10, Sec. 1 ; c. 11, Sec. 1 ; 3 BL, 33-35. 
Now this discrimination cannot have been made on 
account of the inferior importance and dignity of the 
latter; for they were very ancient and absolutely 
indispensable parts of the general system of judicial 
justice ; and in those times " the county court was a 
court of great dignity and splendour ; the bishop and 



— 95 — 

the ealderman (or earl), with the principal men of 
the shire, sitting therein to administer justice both in 
lay and ecclesiastical causes." 3 BL, 36. Nor is it a 
sufficient explanation to say that, as fines and com- 
mitments must go of record, they could not be awarded 
by courts which had no record ; for the real question 
is, why should not the county-court have been a court 
of record, at least for the purposes of this power? 
The distinction lay deeper ; and was expressed in the 
fact that the courts of record were " the King's courts, 
in right of his crown and royal dignity," 3 BL, 24 ; 
even a court-leet " being a King's Court, granted by 
charter to the lords of hundreds or manors," 4 BL, 
273 ; while the freeholders of the county, in right of 
their freeholds, were the real judges of the county- 
court, the Sheriff being only its ministerial officer, 
3 BL, 36 ; so that, like a court-baron or hundred-court, 
it was a court of private men. 3 BL, 25. Equally 
with the court of the Sheriff in his torn, it was estab- 
lished by the law of the land, and, as it acted by the 
consent of the King, at least in the theory of the 
King himself and of the lawyers, it might be said to 
derive its powers from the crown, 3 BL, 24 ; neverthe- 
less it differed radically from the courts of record in 
this, that the latter, being the King's courts, and 
receiving their commissions and powers from him, 
either immediately or by charter, represented directly 
the judicial power of the crown, which could not be 
said of the county-court; since that tribunal acted 
by his consent merely, and was a court of private 
persons. This leads at once to a conclusion touching 
the very nature of contempts, and of the power 
employed in punishing them. They were not re- 



— 96 



garded as merely obstructions of the particular func- 
tionary charged with the administration of justice ; 
they were offences against the judicial power of the 
King; and therefore it was the special business of the 
King's courts to punish and repress them ; just as it 
was of their jurisdiction to take cognizance of all 
other offences against the King, (a) 

Thus it appears that the very fact, that only those 
common law courts which were courts of record could 
fine or commit for contempts, is proof that the power 
was one of jurisdiction, and not a power accruing 
from the right of self-preservation, (b) 

That this is the true character of the power, is 
recognized, in the distinctest manner, by the older 
writers on this subject. In Griesley's case, 8 Coke, 38, 
it appears that one Kingston was chosen constable 
by the jurors and presenters of a leet-court, and that 
being present in the court, he was charged by the 
Steward to take the oath, " which he utterly refused 
to do, and departed in contempt of the Court;" 



(a) In an anonymous case, Willes, 459, it was held that a contempt 
of court was a breach of the peace. In New Orleans vs. Steamship Company, 
20 Wallace, 387, Mr. Justice Swayne said: "Contempt of court is a specific 
criminal offence. The imposition of a fine was a judgment in a criminal case." 

(6) 3 Steph. Com*, on Laws of England: "All courts of record are 
courts of the sovereign, in right of the crown and royal dignity; and 
therefore every court of record has an authority to fine and imprison for 
contempt of its authority. * * * But the common-law courts not of 
record are of inferior dignity, and in a less proper sense the King's courts ; 
and these are not intrusted with any power to fine and imprison the subjects 
of the realm, unless by express permission of some act of Parliament." 
And Blackstone, B. 3, p. 24, says: "All courts of record are the King's 
Courts, and therefore no other court hath authority to fine and 

imprison. * A court not of record is the court of a private man ; whom 

the law will not intrust with any discretionary power over the fortune or 
liberty of his fellow subjects." 



— 97 — 

whereupon he was fined one hundred solidi by the 
Steward. And because the said fine was not paid, the 
defendants, bailiffs, &c, distrained his cattle. King- 
ston now brought his replevin. The first question 
was, "whether the Steward might impose a fine in 
this case." The whole discussion turned upon the 
question, whether the judge must confine himself to 
an award of judgment generally, that the offender 
was in misericordia domini regis; leaving the amerce- 
ment, as in cases of indictment, to be affered or taxed 
by the afferors ; or might himself proceed at once to 
settle the sum to be paid for the default. Coke, 
mingling his own learning, in his usual manner, with 
the arguments of the case, puts the principle in the 
following passage: " There are two manner of offences, 
some done out of court, and some done in court; of 
those which are done out of court, the jurors of the 
leet have conusance, and therefore power to present 
them ; but for contempts and misdemeanors in court, 
before the Steward himself, he hath conusance of them, 
and therefore may impose a fine for them, and thereof 
need not make inquiry ; so that those who have conu- 
sance of the thing are fit to impose a fine or amerce- 
ment for the same thing." And Sergeant Hawkins, 
b. 2, c. 10, Sec. 19, says : " But if thje amercement be 
for a contempt of the court, it may be settled by the 
judge himself, and needs no other afferement ; for the 
judge of every court of record is the most proper judge 
of all contempts offered to such court; and an amerce- 
ment of this hind is in the nature of a fine, and is so 
called in some books." And in another place, he says : 
" If the contempt happen to be done by a person 
present in the court; and it appears either from the 

13 



98 



confession of the person, or on his examination upon 
oath, or by the view or immediate observation of the 
judges themselves, the court may immediately record 
the crime, and commit the offender, and also inflict 
such punishment as shall seem proper." 

We gather from these statements of Coke and 
Hawkins, that punishment of contempts was simply 
the administration of criminal justice, and had nothing 
whatever to do with self-protection. The only ques- 
tion was, who should have conusance of the offence ; 
and the common law determined that the judge was 
the proper person ; in a matter which occurred in his 
view or immediate observation, or which was ascer- 
tained by the confession of the person, or by his 
examination upon oath. 

Finally, the pretension that this power originally 
accrued to the courts of record ex necessitate, and that 
it differed, in this respect, from their other jurisdic- 
tional powers, is completely refuted by the distinction 
made between superior and inferior courts of record 
in matters of contempt. The former were authorized 
to punish contempts generally, whether committed in 
court or elsewhere ; the latter could punish only those 
contempts which were committed in court. In other 
words, the higher courts of record had jurisdiction to 
punish summarily such as might indirectly impede 
the judicial power, as well as those which immediately 
and directly obstructed it ; while the lower courts of 
record could punish only direct obstructions. This 
distinction was even more significant than that be- 
tween courts of record and courts not of record. It 
was one which necessity could not establish ; it could 
only be the work of positive law, and could only 



99 



happen in the process of distributing jurisdictional 
powers. 

This matter was discussed in Queen vs. Lefroy, 
L. R. 8 Q. B., 134, where the question related to the 
power of the county courts established by statute. 
Mr. Justice Mellor said : " In 2 Hawkins, P. C. b. 2, 
c. 3, it is said the old jurisdiction of the one supreme 
court was introduced after the conquest, in which the 
grand justiciary acted as viceroy; and out of this court 
was erected the courts of Queen's Bench, Common 
Pleas and Exchequer ; and therefore the foundation 
of the authority of these courts, as to contempts com- 
mitted in court, and contempts committed out of court 
having a tendency to affect the administration of 
justice, was, that they were part of the great court or 
aula regis. The authority of the inferior courts of 
record has no such foundation ; the matter stands on 
quite a different footing as to them ; and no instance 
has been found where this power has been assumed or 
justified by any decision, otherwise than for contempts 
committed in face of the courts." The last words refer 
to the power of the inferior courts of record. 

In the same case, Mr. Justice Quain said : " No au- 
thority is to be found for the existence of any such 
powers in an inferior court of record. The Superior 
Courts have always had the power of proceeding for 
contempts not committed in court. They had it, as 
Chief Justice Wilmot points out, by immemorial usage." 
Wilmot's Opin., 254. He adds that it was not thought 
proper to intrust such power to the inferior courts of 
record. 

y The power of courts of record to punish for con- 
tempts could not be placed more distinctly on the 



— 100 — 

ground of jurisdiction vested by positive law, than it 
is in these opinions. According to one of the learned 
judges, the larger jurisdiction of the Superior Courts 
of Record belonged to them as parts of the aula regis, 
the King's own Court ; and according to the other, by 
immemorial usage. It was also as King's Courts 
that the inferior courts of record exercised the more 
restricted power, but the King restricted them to that 
narrower jurisdiction, because it was not convenient 
that they should exercise the larger. 

A recent case, decided in 1835, shows still more 
plainly that the English Courts, instead of deriving 
the power from necessity, as a remedy of self-protection, 
base it upon actual grant. In the King vs. Faulkner, 
2 Cromp. Mees. & Rose, 525, the power was denied 
because the grant was not clear. The act of 1 and 2 
Wm. 4, c. 56, had created a Court of Bankruptcy, con- 
sisting of four judges and six commissioners, who, how- 
ever, were not intended to meet as one tribunal. They 
were divided into several branches, one of which, com- 
posed of four judges, constituted a Court of Review; 
while each of the others, composed of three Commis- 
sioners, constituted a Court of Sub-division. These 
commisioners were also authorized to act singly. 

A question, whether a Commissioner, sitting separ- 
ately, had power to commit for contempt, arose under 
the first clause of the statute, which provided that "the 
same court shall be and constitute a court of law and 
equity, and shall, together with every judge and com- 
missioner thereof, have, use, and exercise all the rights, 
incidents, and privileges of a court of record, * * as 
fully, to all intents and purposes, as the same are used, 
exercised and enjoyed by any of his Majesty's Courts 



— 101 — 

of law, or Judges at Westminster." There can be no 
doubt that one of the "incidents" of a court of record, 
when that term is used broadly, was to commit for 
contempt ; and if the words of this clause were to be 
accepted in that sense, a single commissioner would 
clearly be authorized by them so to commit. But, 
instead of seizing upon an opportunity to attribute 
this power, the Court of Exchequer explained away 
the literal force of the provision, and denied the 
power. 

Chief Baron Abinger said : " I think so important 
a power, which requires the greatest nicety in its ex- 
ercise, should not be vested merely by an inferential 
construction of an Act of Parliament, because in a gen- 
eral clause it invests him with the character of a judge 
of record. It is sufficient to say, if we are bound to 
find a meaning for every word in that clause, that the 
incidents and rights given to the judges of record 
were meant to protect him from being liable to the 
consequences of an action for any act he might do in 
the exercise of his functions ; but it would not follow 
from that, that the legislature intended to give him 
all the powers of a Judge of a Court of Record to the 
full extent." And Alderson, B., said: "It seems to 
me that the first clause may have a very reasonable 
construction, without giving to the commissioner sit- 
ting alone the power contended for on the present 
occasion. * * * If you take the words to the let- 
ter, it would give to every commissioner the power 
and privilege of a court of record, as fully as they are 
exercised at Westminster. / think it would require 
very strong words to induce the court to come to that 
conclusion. The words of the Act may have a very 



— 102 — 

sensible construction by being construed distributively ; 
that is to say, by giving to Courts of Bankruptcy the 
incidents and privileges of a court of record, and by 
o-iving to the judges and commissioners of courts of 
bankruptcy the rights, incidents and privileges that 
belong to a judge of a court of record. No one of the 
rights, privileges and incidents of a Judge of a Court 
of record necessarily carries with it the power of com- 
mitting for contempt ; and therefore, it seems to me, 
that the first clause, by being construed distributively, 
may have a perfectly sensible construction, being in- 
tended to constitute the Court as a court of record, 
with all its rights, incidents and privileges ; that is, 
having its records treated as all other records of an- 
other court, and each of its judges having the same 
protection and privileges which judges of the courts 
of record have, of not being answerable, in the shape 
of actions, for any acts which they have done in their 
judicial capacity and character. That will give a clear 
and sensible construction, without giving this irre- 
sponsible power" 

It may be remarked just here, that the court had 
in hand the construction of a grant, just as we have, 
in the question before us. In that case, however, it 
was plain that, taken literally, the words of the grant 
would give the power ; while not a word descriptive 
of such a power appears in the Constitution of the 
United States ; and the power itself must be an im- 
plication. Instead of having to consider whether 
they might graft anything upon the grant by impli- 
cation, they had to consider whether they might not 
take something from it by construction ; and Baron 
Alderson remarked that it would " require very strong 



— 103 — 

words " to induce the court to conclude that the power 
was granted. 

If the spirit of the courts of common law, in de- 
termining whether this peculiarly judicial power was 
conferred upon a judicial person, were applied in 
determining whether it has been conferred, by impli- 
cation, upon legislative functionaries, there never 
would be an implication that it was conveyed by a 
grant of mere legislative power. 

The special purpose, however, for which Rex vs. 
Faulkner is now cited, is to show that the English 
Courts have steadily, from the beginning down to the 
present time, held, that the English common law has 
never placed the power of judicial bodies to punish 
contempts, on the ground of inherent necessity, or on 
the principle of self-protection ; but that they have 
always placed it Upon positive grant, and have been 
very strict in construing the grant. 

Let us turn from the history of this power of the 
courts in England, to what has been done in the same 
matter in our own country. It will appear by our 
legislation, that we have determined that this power 
is not inherent in the very constitution of a superior 
court ; and that the possession and extent of it have 
been treated as a question of polity and convenience. 

The Judiciary Act authorized the Courts of the 
United States " to punish, by fine and imprisonment, 
at the discretion of said courts, all contempts of au- 
thority in any cause or hearing before the same." In 
consequence of certain decisions, by which this pro- 
vision was held to include the full measure of the 
common law power, Congress limited the authority 
of the courts by a rule of construction. The act of 2 



— 104 — 

March, 1831 (4 Stat. 487) provided: "that the power 
of the several courts of the United States to issue 
attachments and inflict summary punishments for 
contempts of court, shall not be construed to extend 
to any cases except the misbehavior of any person or 
persons in the presence of said courts, or so near 
thereto as to obstruct the administration of justice, 
the misbehavior of any of the officers of said courts 
in their official transactions, and the disobedience or 
resistance by any officer of the said courts, party, 
juror, witness or any other person or persons, to any 
lawful writ, process, order, rule, decree or command 
of the said courts." 

This statute cuts off a large part of the power vested 
by the common law in the English superior courts of 
record; indeed almost all that distinguished them from 
the inferior courts of record. For example, the courts 
of the United States cannot punish, as a contempt, the 
offer of a bribe to the judge, or threats addressed to a 
witness, juror or party, not in its presence ; or a libel- 
ous publication concerning pending proceedings. 
The common law held these acts to be obstructions of 
the administration of justice ; but Congress has de- 
clared that power to punish them as contempts is not 
necessary to the courts of the United States. In other 
words, it has been declared that the functions of a 
superior court of record do not imply, as an incident 
necessary to the exercise of those functions, power to 
punish every act which obstructs them. For some of 
these obstructions, the same statute provides the or- 
dinary and more deliberate remedy of indictment and 
trial by jury ; but for others, such as libelous and 
contemptuous publications, tending to impede justice, 



— 105 — 



no remedy at all is provided or permitted. However 
injurious they may be, it seems to have been deemed 
more important to avoid the risk of unduly restricting 
the liberty of the citizen, and especially the freedom 
of the press, than to protect the courts from such con- 
sequential obstructions as may be caused by abuse of 

that liberty. 

The opinion of Congress, as to what protection is 
necessary to the administration of justice, is expressed 
in the second section of the Act of 1831, which pro- 
vides : " That if any person or persons shall, corruptly, 
or by threats or force, endeavor to influence, intimi- 
date, or impede any juror, witness, or officer in any 
court of the United States, in the discharge of his 
duty ; or shall, corruptly, or by threats or force, ob- 
struct or impede, or endeavor to obstruct or impede, 
the due administration of justice therein, every person 
or persons so offending shall be liable to prosecution 
therefor, by indictment, and shall, on conviction 
thereof, be punished by fine not exceeding five hun- 
dred dollars, or by imprisonment, not exceeding three 
months, or both, according to the nature and aggrava- 
tion of the offence." 

It appears, then, that, in dealing with this matter 
of contempts and obstructions, the legislature has de- 
cided, in the case of the courts at least, that immem- 
orial usage had not established " the measure of neces- 
sity," nor indeed any necessity at all. It has been 
assumed that the whole matter belongs to the domain 
of polity, and is one of convenience. 

In view of the fact that the claim of legislative 

power to punish contempts has been largely built 

rupon what was declared to be the analogous necessity 



14 



— 106 — 

of such power to the courts, it is worth while to notice 
the bearing of these later conclusions upon some of 
the exercises of that power by Congress. Duane was 
imprisoned for defamation of the Senate, and Ander- 
son for offering bribes to members of the House of 
Eepresentatives. These offences were punished by 
those bodies, respectively, as contempts ; and the pre- 
tension of power to inflict the punishment was 
supported by reference to the fact that such power 
belonged, ex necessitate, and on the principle of self- 
preservation, to every court of justice. It was claimed 
that it must exist in all analogous cases, and that the 
cases of legislative and judicial bodies were, in this 
respect, analogous. These two bodies, afterward, 
united in declaring, by the Act of 1831, that, in the 
example referred to, power to punish precisely similar 
obstructions did not exist, ex necessitate. 

That statute, it should be remembered, was 
demanded of Congress by the common judgment of 
the country. Therefore, when that supreme tribunal 
decided that the power of summary punishment must 
be not only reduced, but very precisely denned 
before it should be entrusted, even, to functionaries 
who were designed wholly for judicial and deliberate 
action, equipped with appropriate methods, and pro- 
tected, to a great degree, from passion and party 
feeling, by a life tenure of office ; it is a fair implica- 
tion that, on the principles of that judgment, a power 
without definition or limits is not fit to be exercised 
by bodies whose very function of making law tends 
to incapacitate them for a judicial application of law; 
who have not, and cannot have any sufficient means 
of perfect inquiry ; who must inevitably be com- 



— 107 — 

posed of the representatives of political parties, and 
who are beyond the reach of impeachment for an 
abuse of the power. By that statute, the country has 
effectively pronounced judgment against all preten- 
sions to undefined and discretionary power over 
personal liberty, wherever they might be set up. 

It is submitted that our examination of history and 
authority now justifies the following conclusions : 

First. Power to punish contempts was acquired by 
the House of Commons and by the King's Courts by 
grant. It was granted to them by the common law ; 
in other words by the British Constitution ; just as 
the specified powers of our legislative and judicial 
departments have been granted by the Constitution 
of the United States. 

Second. It was not granted on the ordinary princi- 
ple of self-preservation, but because it was proper and 
convenient that they should have it, and as a power 
of jurisdiction. 

Third. And, as a consequence or re-statement of 
these conclusions, the common law did not pretend to 
establish, and did not establish thereby, any conclu- 
sion as to what powers were necessarily incident to 
legislative assemblies and judicial bodies. 

Fourth. When the question, what is necessarily 
incident to a legislative assembly, at last presented 
itself, the common law of England denied, as we have 
seen, that power to adjudicate and inflict punishment 
for contempts was incident to legislative assemblies, 
or was included in a common law grant of legislative 
power. 



108 — 



III. 

If the foregoing conclusions be true, it is difficult to 
perceive how a reference to the common law can en- 
able us to imply that this power is incident to the very 
existence of the two houses of Congress ; since we 
should turn to that law only to learn that it denied 
the very proposition which we propose to establish. 

But we propose now to show that, even if the com- 
mon law had in fact held that such power was inci- 
dent to legislative assemblies, that conclusion would 
be of no force whatever, in determining whether it be- 
longs to the bodies established by our written Consti- 
tution. In other words, we propose to show that no 
reference to the common law, touching this matter, is 
authorized or permitted. 

We are aware of the gravity of this undertaking. 
It is entered upon in face of a common assumption, 
for more than three-quarters of a century, that the 
common law, known as lex parlia/nienti, aids us in de- 
termining the " incidental powers , of these bodies, 
even where the Constitution contains no expression 
which refers to it. Commonly this assumption is only 
implied; but it is stated explicitly by the learned 
commentator on the Constitution. In speaking of the 
very power now in question, he says : " We may re- 
sort to the common law to aid us in interpreting such 
instruments and their powers ; for that law is the 
common rule by which all our legislation is inter- 
preted. It furnishes principles equally for civil and 
criminal justice, for public privileges and private 



— 109 — 

rights. Now, by the common law, the power to pun- 
ish contempts of this nature belongs incidentally to 
courts of justice and to each house of Parliament. No 
man ever doubted or denied its existence as to our 
colonial assemblies in general, whatever may have 
been thought as to particular exercises of it." Story, 
sec. 846. 

It is immaterial to this part of our inquiry, that the 
hypothesis on which the learned author built his 
theory — namely, that power to punish contempts 
belonged "incidentally" to each house of Parliament — 
was itself unfounded, and has been swept away by the 
highest common law authorities. The question which 
we are now examining, is, whether, conceding it to be 
true that the common law held such power to be inci- 
dent to legislative assemblies, any implication that 
similar power has been granted by our written Con- 
stitution to our legislative assemblies, can be based 
upon that fact. Has the common law anything to do 
with the matter ? 

It has never been questioned that, for purposes of 
" interpretation," in the proper sense of that word, we 
must often resort to the common law, in order to un- 
derstand the Constitution. Provisions which employ 
its phraseology, necessarily refer the interpreter to 
the source from which they were borrowed, for an ex- 
planation. Not merely the verbal meaning, but the 
operation of a provision may be determined in this 
way. Familiar examples of this process, which have 
undergone judicial determination, are found in the 
provisions relating to the privilege of " the writ of 
habeas corpus," to the President's " power to grant 
pardons," to " due process of law," and to the right of 



— 110 — 

trial by "jury." All of these are common law phrases 
understood to be used technically ; therefore it is only 
from that law that we can learn what writ of habeas 
corpus it was, the privilege of which was not to be 
suspended except in certain cases ; or how much was 
understood to be included in power to grant pardons ; 
or what had been recognized as due process of law ; 
or what was meant by a jury. The principle applied 
in these instances was perhaps still better illustrated 
by the provision which extended the judicial power 
of the United States to " all cases of admiralty and 
maritime jurisdiction." It was held in Waring v. 
Clarke, 5 Howard, 454, et seq., that a collision occur- 
ing on tide-water was " a case of admiralty jurisdic- 
tion," notwithstanding it occurred also within the 
body of a county ; and the same rule is now applied 
to cases happening above tide- water. When the Con- 
stitution was adopted, such a tort was understood in 
this country to be of admiralty jurisdiction, but was 
not so understood in England; and the Supreme 
Court held that these words had reference to the un- 
derstanding here. In short, the general principle of 
interpretation has been, that the words of the Consti- 
tution may be explained by reference to the particular 
law from which they were borrowed, and that the 
Constitution itself intended to refer the interpreter to 

that source. 

But in the matter under consideration, the Consti- 
tution cannot be said to have referred us to some other 
law in any such manner. It is alleged to have re- 
ferred in some way to a power incident, by some other 
law, to legislative assemblies ; but there is no pretence 
that it has done so by the use of any peculiar words 



— Ill — 

or phrases touching legislative assemblies or legisla- 
tive power. It simply provides that " all legislative 
powers herein granted shall be vested in a Congress of 
the United States, which shall consist of a Senate and 
a House of Representatives ;" and afterwards grants 
those powers. The single intent of the provision in 
which legislative powers are mentioned, was to declare 
where those powers should belong, and that the body 
to which they belonged should consist of a Senate and 
a House of Representatives. It did not pretend to 
deal with the subject of legislative power, nor did it 
even characterize those bodies as legislative assem- 
blies. It neither calls for nor admits of reference to 
external sources for explanation of its meaning. It 
establishes simply a fact ; the fact, namely, that two 
bodies exist, and that those bodies are parts of a Con- 
gress which has certain legislative powers, and are 
themselves, therefore, actually legislative assemblies. 
The sole question, then, is whether this fact refers us 
to any other law for an implication of power known 
to be granted by that law. 

The grounds of the argument which undertakes to 
work out this implication, are necessarily as follows : 
It is a fact that the authors of the Constitution es- 
tablished two legislative bodies ; and it is a fact that 
the common law, recognized and adopted by them, 
gave to such bodies the power to punish contempts. 
Therefore they must have intended that these bodies 
should have the power which their common law gave 
to all such bodies. 

This statement of the argument cannot be met by 
giving to it merely a new form ; by saying, for 
example, that it must be supposed to have been the 



— 112 — 

legal intent of the Constitution that the bodies which 
it established should have whatever powers its authors 
held to be necessary to the existence and safety of 
such bodies; and that their common law may be 
referred to, in order to ascertain what they did hold 
to be necessary. 

This would only be to say, that, inasmuch as they 
had a common law, it must be supposed to have been 
their intent that it should operate, although not incor- 
porated into the Constitution by a reference to it ; and 
therefore that it should operate as their common law. 
If it was to operate when not referred to, the proposi- 
tion comes at last to this : that, besides the Constitu- 
tion, its authors had another law ; and that when the 
written instrument gave existence to an institution, 
that other law gave it power. It is idle to talk about 
reference to the common law when none is made. 
Whatever effect that law should have, in such a case, 
must take place simply because it co-existed with the 
Constitution, and consequently by its own authority. 
We are reduced to suppose that the framers and 
adopters of the Constitution meant to clo part of their 
work by written compact and part of it by their 
unwritten common law. 

That the common law should clothe with power 
an institution to which it gave existence, is familiar 
enough doctrine; but that it cannot perform that 
office for a creature of legislation, has been settled by 
a line of decisions which cannot be shaken. It is the 
settled doctrine, in reference to the courts of the 
United States, that they may exercise common law 
powers only when the Constitution or the laws have 
made them constitutional or statutory powers; and 



— 113 — 

that they cannot look to the common law as a source 
of jurisdiction. 

The principle of that class of decisions is, that the 
common law regulates the powers of institutions 
created by our written law, only just so far as the 
written law, by some phrase of adoption, applies it to 
that institution ; and this principle applies as per- 
fectly to the legislative and executive as to the 
judicial institutions of this country. It is not our 
present business to deal with the question, Whether 
the common law of a State can clothe its legislative 
assemblies with this power, unless it is thus incor- 
porated by the State Constitution ; but it may be 
added, that the same reasoning which forbids the 
operation of common law, in the case of the legislative 
assemblies of the United States, would forbid its 
application in a like case to those of the States. 

This assumption, that the authors and adopters of 
the Constitution intended that a common law power 
should attach, incidentally, to the new legislative 
assemblies, should rest on clear affirmative evidence 
that such an intention was universal; since the 
Constitution was not to be imposed upon all of the 
members of the old Confederation by a vote of the 
majority ; and certainly no such assumption can 
stand if there is evidence that the people of any 
State did not so intend when they accepted the 
Constitution. This negative evidence exists. The 
protest made by the General Assembly of Virginia, 
only twelve years after the people of that State had 
voted to adopt that instrument, must be regarded as, 
for this purpose, a cotemporaneous exposition of their 
intentions. On the 11th of January, 1800, the 

15 



— 114 — 

General Assembly of Virginia sent to the senators 
from that State an instruction, and to the represen- 
tatives a request : " To oppose the passing of any law 
founded on, or recognizing the principle lately 
advanced, ' that the common law of England is in 
force under the government of the United States ;' 
excepting from such opposition, such particular parts 
of the common law as may have a sanction from the 
Constitution, so far as they are necessarily compre- 
hended in the technical phrases which express the 
powers delegated to the government ; and excepting, 
also, such other parts thereof as may be adopted by 
Congress, as necessary and proper in carrying into 
execution the powers expressly delegated." See 1 
Tucker's Blackstone, App. 433. 

This protest was directed specially against the 
doctrine that the Courts of the United States had 
jurisdiction to punish common law offences ; but it 
applied equally to the pretension that the lex parlia- 
mentarian with its code of undefined offences, had been 
adopted by implication. It expressed, of course, the 
sentiment of the people of Virginia, and it is not to 
be supposed that they took a different attitude on this 
question only twelve years before, when they voted 
upon the adoption of the Constitution. But Virginia 
was not the only exception which broke the line of 
common consent to an implied adoption of lex parlia- 
menti. Massachusetts and New Hampshire cannot be 
supposed to have assented to such an adoption, when 
they had already cut down its proportions by their 
own constitutions. 

It is submitted, then, that the common law cannot 
be referred to, and cannot have any effect whatever 



— 115 — 

in determining whether the power to punish contempts 
is incident to the existence of the two houses of Con- 
gress ; first, because on general principle, the written 
instrument necessarily excluded the operation of any 
other law upon the institutions which it established, 
except so far as it referred to and adopted that law by 
the use of some express term ; and second, because 
there is clear evidence that, as a matter of fact, some 
of the authors of the Constitution acted upon an 
understanding that the common law was not to have 
any operation, except in cases of such express ref- 
erence, (a) 



(a) Mr. Duponceau has admirably described, in the Preface to his Dis- 
sertation on the Jurisdiction of the Courts of the United States, p. viii, et 
seq., the difference between the relations which the common law bore to 
political institutions in England and the colonies, and those which it bore 
to institutions established by the written Constitutions of the States. 

" In England, the country from whence we have derived, not only our 
system of jurisprudence, but most of our civil and political institutions, 
there is a metaphysical being called common law, which originally was a 
code of feudal customs, similar to the coutumes which, until lately, governed 
the different provinces of the neighboring Kingdom of France, but which, 
by gradual steps, and by force of circumstances has become incorporated and 
in a manner identified not only with the national jurisprudence, but, under 
the name of Constitution, with the political government of the country. The 
King's prerogative and the rights of the subject are alike denned and limited 
by the common law. The various and often conflicting jurisdictions of the 
different tribunals in which justice is administered are also said to be 
derived from it, although in many instances, they are known to be founded 
on gradual and successive assumptions of power ; bat those having been 
established and consolidated by time, are now become common law. This 
ens rationis is a part of every civil and political institution, and everything 
connected with the government of the country is said to be a part of it. 
Thus the law of nations, the law-merchant, the marine law, the Constitution, 
and even the religion of the kingdom, are considered to be parts and parcels 
of the common law. It pervades everything and everything is interwoven 
with it. Its extent is unlimited, its bounds are unknown ; it varies with the 
successions of ages, and takes its color from the spirit of the times, the learn- 
ing of the age, and the temper and disposition of the judges. It has experi- 



116 — 



But if these objections could be removed, it is 
submitted that another remains which must be fatal. 



enced great changes at different periods, and is destined to experience 
more, It is from its very nature, uncertain and fluctuating ; while to vul- 
gar eyes, it appears fixed and stationary. Under the Tudors and the first 
Stewarts, forced loans, ward-ships, purveyance, monopolies, legislation by 
royal proclamation, and even the Star Chamber and High Commission 
Courts, and slavery itself, under the name of villenage, were parts of the 
common law. At the revolution it shook off these unworthy fetters, and 
assumed the character of manly freedom for which it is now so eminently 
distinguished. 

" Twelve Judges, who hold their offices during good behavior, are the 
oracles of this mystical science. In a monarchy like England, which has 
no written Constitution, but in which all the rights of the Sovereign, as well 
as the privileges of the people, are to be deduced from the common law, 
those Judges are an useful check against the encroachments of the Monarch 
or his Ministers ; hence the common law and the judicial power are, in that 
country, almost objects of idolatrous worship. While the United States 
were colonies, they partook of this national feeling ; the grievances which 
induced them to separate from the mother country were considered as vio- 
lations of the common law, and, at the very moment when independence 
was declared, the common law was claimed by an unanimous voice as the 
birthright of American citizens ; for it was then considered as synonymous to 
the British Constitution, with which their civil rights and political liberties 
were considered to be identified. In the discussion that arose between the 
colonies and Great Britain, the Constitution or the common law, which was 
the same thing, was appealed to in favor of the doctrines which the contend- 
ing parties respectively maintained. It was, therefore, held by all in equal 
veneration, and by all cherished as their most precious inheritance. 

" The revolution has produced a different state of things in this country. 
Our political institutions no longer depend on uncertain traditions, but on 
the more solid foundation of express, written compacts. The common 
law is only occasionally referred to for interpretation of passages of our 
textual Constitutions and the Statutes made in aid of them, which have 
been expressed in its well-known phraseology, but there ends its political 
empire. It is no longer to it that our constitutional authorities look for the 
source of their delegated powers, which are only to be found in the letter or 
spirit of the instruments by which they have been granted. 

" The common law, therefore, is to be considered in the United States, 
in no other light than that of a system of jurisprudence, venerable indeed for 
its antiquity ; valuable for the principles of freedom which it cherishes and 
inculcates, and justly dear to us for the benefits that we have received from 
it ; but still, in the happier state to which the revolution has raised us, it is 
a system of jurisprudence, and nothing more." 



— 117 — 

The proposition that this power is incident to our 
legislative assemblies, stands upon an assumption that 
the founders of the Constitution had a common law, 
which was common to them to the same extent and in 
the same manner with the Constitution itself ; that is 
to say, that the law to be referred to was the common 
law of the authors of the Constitution. 

Now it is submitted that no such common law 
existed. A general common law, pervading all of the 
States as one rule, while those States expressly de- 
clared themselves, in their Articles of Confederation, 
to be sovereign and independent, and therefore to 
have independent systems of law, is not conceivable. 
And certainly, common law in that sense would not 
come into existence by force of the fact — if it had been 
a fact — that the common law systems of the several 
States were alike. 

It was practicable, indeed, when the people of the 
several States resolved to come into closer relations, 
that they should establish such a body of law by their 
Constitution ; but they omitted to do so, and it is the 
settled doctrine that, to this day, no such common law 
exists. In Wheaton vs. Peters, 8 Peters, 658, the 
Supreme Court of the United States said : " It is clear 
that there can be no common law of the United States. 
The federal government is composed of twenty-four 
sovereign and independent States ; each of which may 
have its local usages, customs and common law. 
There is no principle which pervades the Union, 
and has the authority of law, which is not embodied 
in the Constitution or laws of the Union." See, also, 
United States vs. Worrall, 2 Dallas, 393; 'United 
States vs. Hudson, 7 Cranch, 32 ; United States vs. 



— 118 — 

Coolidge, 1 Wheaton, 415 ; Pennsylvania vs. Wheel- 
ing Bridge, 13 Howard, 563 ; United States vs. New 
Bedford Bridge, 1 Wood. & M., 435 ; United States 
vs. Lancaster, 2 McLean, 433; United States vs. 
Wilson, 2 Blatchf., 435. 

The only remaining hypothesis is, that the authors 
of the Constitution acted with reference to the com- 
mon law of the several States, and that they must be 
supposed to have intended that the two Houses of 
Congress should have whatever power those several 
unconnected bodies of law had declared to be inci- 
dent to legislative assemblies. 

Now, this implication assumes that the local laws 
of the States were coincident in this matter, and no 
such uniformity existed. The law on this subject, in 
Massachusetts and New Hampshire, differed from 
that of some of the other States and of England. 
Massachusetts, by her Constitution of 1780, and New 
Hampshire, by her Constitution of 1784, had 
restricted the power of their legislative assemblies to 
punish contempts, to narrower limits than those pre- 
scribed by the common law elsewhere, (a) What 



(a) The Constitution of Massachusetts, adopted in 1780, contained the 
following provisions : 

"X. The House of Kepresentatives shall be the judge of the returns, 
elections, and qualifications of its own members, as pointed out in the consti- 
tution ; shall choose their own Speaker; appoint their own officers, and 
settle the rules and orders of proceeding in their own House. They shall 
have authority to punish, by imprisonment, every person, not a member, who 
shall be guilty of disrespect to the House, by any disorderly, or contemptuous 
behavior, in its presence ; or who, in the town where the General Court is sitting 
and during the time of its sitting, shall beaten harm to the body or estate of any 
of its members, for anything said or done in the House ; or who shall assault 
or arrest, any witness, or other person, ordered to attend the House, in his 
way, in going or returning ; or who shall rescue any person arrested by the 
order of the House. 



— 119 — 

becomes, then, of the supposed reference to the con- 
clusions of the local laws of the several States, when 
this matter was regulated by the common law, in 
some of the States, and by written Constitutions in 
others ; and when those conclusions, as to what power 
was necessary and incident to legislative assemblies, 



"And no member of the House of Kepresentatives shall be arrested, or 
held to bail, on mesne process, during his going unto, returning from, or his 
attending the General assembly. 

" XI. The Senate shall have the same powers in the like cases ; and the 
Governor and Council shall have the same authority to punish in like cases; pro- 
vided that no imprisonment on the warrant or order of the Governor, 
Council, Senate, or House of Kepresentatives, for either of the above- 
described offences, be for a term exceeding thirty days. 

"And the Senate and House of Kepresentatives may try, and determine all 
cases where their rights and privileges are concerned, and which, by the 
Constitution, they have authority to try and determine, by a committee of 
their own members, or in such other way as they may respectively think 
best." 

The provisions of the Constitution of New Hampshire, of 1784, relating 
to this subject were as follows : 

'' The House of Kepresentatives shall choose their own Speaker, appoint 
their own officers, and settle the rules of proceedings in their own House. 
They shall have authority to punish, by imprisonment, every person who 
shall be guilty of disrespect to the House, in its presence, by disorderly or con- 
temptuous behavior, or by threatening or ill-treating any of its members; 
or by obstructing its deliberations ; every person guilty of a breach of its 
privileges in making arrests for debt, or by assaulting any member during 
his attendance at any session ; in assaulting or disturbing any one of its offi- 
cers in the execution of any order or procedure of the House ; in assaulting 
any witness, or other person ordered to attend by, or during his attendance 
of, the House ; or in rescuing any person arrested by order of the House, 
knowing them to be such. The Senate, President and Council shall have 
the same powers in like cases, provided, that no imprisonment by either, for 
any offence, exceed ten days." 

It is observable that the power to punish for contempt, specified in these 
two Constitutions, was extended to the Executives of those States, and that 
the causes for which such punishment might be ^inflicted, as well as the 
amount of the punishment, were much more limited than those allowed by 
the common law. Duane could not have been punished for his newspaper 
article under either of these provisions. 



— 120 — 



were not uniform ? The base on which that implica- 
tion of a grant of power is founded never existed, and 
the implication must fall. 

Finally, if for want of uniformity, this implication 
cannot be founded upon the local laws of the States 
existing when the Constitution was framed and 
adopted, it would be to little purpose to show that 
this power had once been recognized by the common 
law in all the colonies. The question is, what was 
the common understanding at the time of the framing 
of the Constitution, not what it had been at some 
other time. The example of the colonies is, therefore, 
irrelevant, even if it could be shown that their rules, 
on this subject, were uniform. 



— 121 — 



IV. 

Having considered whether the Constitution contains 
any affirmative implication of this power, we propose 
next to show that it contains negative implications- 
implications that it was not granted; and, further, 
that it contains provisions which actually prohibit the 
several houses of Congress to assume it. 

It is plain— indeed the argument for the power 
. stands on this ground— that the framers of the Con- 
stitution had carefully studied the privileges and 
powers of the two houses of Parliament ; that they 
were aware of the privileges touching arrests and 
freedom of speech ; of the right of the Commons to 
judge of the elections, returns, and qualifications of 
their members ; to determine the rules of their pro- 
ceedings ; to punish and even expel their members ; 
and punish persons who were not members, for 
contempt or breach of their privileges. 

On the other hand, they must have known that the 
election of Speaker was still subject to the Crown's 
approval; that both Lords and Commons restricted 
the publication of their proceedings, so that even the 
votes of their members might remain unknown ; and 
that both exercised the extraordinary power of 
compelling the assistance of every branch of the civil 
government in executing their warrants and orders. 
In short, they were familiar with parliamentary 
privilege, and knew how it had -been used. What 
was their conduct under these circumstances, when 
they set about framing a new form of government, 
and what was its meaning ? 

16 



— 122 — 

Keeping these privileges and powers in view, and 
plainly copying from them, they proceeded to set 
down, in carefully limited terms, the privileges and 
powers of their own legislative assemblies. They 
provided that " senators and representatives * * shall 
in all cases, except treason, felony, and breach of the 
peace, be privileged from arrest during their atten- 
dance at the sessions of their respective houses, and 
in going to and returning from the same ; and for any 
speech or debate in either house, they shall not be 
questioned in any other place;" that "the house of 
representatives shall chuse their sjaeaker and other 
officers; 7 that "the senate shall chuse their other 
officers [than the Vice President] and also a President 
pro tempore, in the absence of the Vice President;' 
that "each house shall be judge of the elections, 
returns and qualifications of its own members ; " that 
"each house may determine the rules of its proceed- 
ings, punish its members for disorderly behaviour, and, 
with the concurrence of two thirds, expel a member;' 
and that "each house shall keep a journal of its 
proceedings, and from time to time publish the .same, 
excepting such part as may in their judgment require 
secrecy." They further provided a means by which 
the vote of each member might be known, by author- 
izing a demand of the yeas and nays; and, finally, 
they regulated the power of each house to make 
separate adjournments. 

When we compare these details with the provisions 
of the lex parliamentaria and observe that some of 
the latter were adopted in the very language of that 
law, that some of them were restricted by new limits, 
that one of them was displaced by a contrary rule, 



— 123 — 

and that some are not mentioned at all, it is impossible 
to doubt that the founders of the Constitution proposed 
to themselves to select from the common law those 
privileges and powers only, which should be suitable 
to their own legislative assemblies; or that they 
intentionally omitted, and intended to exclude, what 
they did not set down. The number and variety of 
the provisions which they took pains to make, would 
seem to be conclusive evidence that they intended to 
dispose of the whole subject of privilege and power ; 
and it is a familiar rule of construction, that whatever 
is not contained in any document which undertakes to 
dispose of a whole subject, is rejected. The Supreme 
Court of the United States has even held, that any 
provision of an old statue which is not embodied in a 
new one which has this purpose, is repealed; although 
it may not be inconsistent with the provisions of the 
new act. Surely the same principle should apply, and 
with even greater force, to an original omission. 

On the other hand, it is not supposable that the 
framers of the Constitution omitted to mention this 
J30wer, because they thought that, being a power ex 
necessitate, it would take care of itself, without being 
mentioned; for power to expel a member is equally of 
that kind ; and they were careful to specify that. We 
are not at liberty to presume that they acted on a 
theory which they did not observe. Moreover, such 
a supposition must assume that some, at least, of the 
delegates — for example, those from Massachusetts — 
were capable of trusting to implication, a matter which, 
in framing their State Constitution, they had deemed 
it necessary to provide for expressly. 
' , In Anderson vs. Dunn, Mr. Justice Johnson sought 



— 124 — 

to dispose of the objection that expressio unius exclusio 
est alterius, by showing' that an implication of consti- 
tutional powers, in disregard of that maxim, was 
familiar. He said : " There is an express grant of 
power to punish in one class of cases, and one only ; 
and all the punishing power exercised by Congress in 
any cases, except those which relate to piracy and 
offences against the laws of nations, is derived from 
implication. Nor did the idea ever occur to any one, 
that an express grant, in one class of cases, repelled 
the assumption of the punishing power in any other." 
We submit that the power of Congress to enact 
laws for the punishment of other offences than those 
specifically named, is not derived from implication. 
The general power " to make all laws which shall be 
necessary and proper for carrying into execution " 
the powers vested in Congress itself, or in the whole 
Government, or in any department or officer thereof, 
is just as much an express grant of power which covers 
crime, not specified, as the clause referred to is an 
express grant of power over the crimes therein speci- 
fied. Powers which come within the description or 
operation of. an express grant, stand themselves on 
the footing of expressly granted powers, notwithstand- 
ing they are not sjDecified. If a law which provides 
punishment for a certain act, is a law which is neces- 
sary and proper for carrying into execution a certain 
constitutional power, then the power to make that law 
is expressly given. It is not implied, it is ascertained 
by determining that the particular law is one of the 
class described. This criticism is not new, nor unsup- 
ported by authority. In the Legal Tender Cases, 12 
Wallace, 550, Mr. Justice Strong said : '• We are 



125 — 



accustomed to speak, for mere convenience, of the 
express and implied powers conferred upon Congress. 
But, in fact, the auxiliary powers, those necessary 
and appropriate to the execution of the other powers, 
singly described, are as expressly given as the power 
to declare war, or to establish uniform laws on the 
subject of bankruptcy. They are not catalogued, no 
list of them is made, but they are grouped in the last 
clause of Section 8, of the first article, and granted in 
the same words in which all other powers are granted 
to Congress." 

It appears, then, that the examples referred to in 
Anderson's case, not being instances of implied 
power at all, do not even tend to show that when some 
powers have been granted expressly, others, which 
were not expressed, either specifically or generally, 
have been implied. But even if these examples had 
been instances of implied power, they would not have 
tended to prove that a power, not expressed, may yet 
be implied, if it appears that the expressed powers 
were intended to dispose of the whole subject of the 
powers to be granted. There is no reasonable pretence, 
(though such a pretence has been set up by too strict 
constructionists,) that the laws specified in the Con- 
stitution were intended to dispose of the whole subject 
of criminal legislation ; while it is borne upon the 
face of the enumeration of the powers and privileges 
of Congress, that it was the intention to dispose of 
the subject of powers and privileges. 

And it may be added, that the legal presumption 
founded upon this familiar rule, is supported by the 
historical situation. The Constitution was regarded 
by its authors as a new departure in government ; and 



— 126 — 

it was established by populations which were exces- 
sively jealous of the concessions they were about to 
make. The amendments which they demanded, in the 
very act of adopting it, such as the prohibition of an 
established religion and of an oppressive quartering of 
troops, showed a temper that would not risk even mis- 
constructions which were almost impossible; but 
meant that they should be quite impossible. Can it 
be doubted that it was the prevailing intention of a 
people who were moved by such a spirit, to state, either 
in specific or general terms, and within the four cor- 
ners of the written instrument, just what powers they 
were willing to grant to each department of this Gov- 
ernment ? Can it be supjoosed that they were willing 
to leave to implication what it was so easy to say, and 
what had been said in other constitutions ? The prin- 
ciple laid down in Marbury v. Madison, 1 Crancli. 
137, is almost a direct answer to' such a question ; for 
it was stated, not merely by a judge who had studied 
the Constitution, but by a man who personally knew 
its authors, that " The powers of the legislature are 
denned and limited ; and that those limits may not 
be mistaken or forgotten, the Constitution is written. 
To what purpose are powers limited, and to what pur- 
pose is that limitation committed to writing, if these 
limits may, at any time, be passed by those intended 
to be restrained?" In the spirit of this rule we may 
ask : To what purpose were the independent powers 
of the several branches of the legislature committed 
to writing, if we may look beyond that writing, and 
search for new powers in the undefined and disputed 
common law of privilege ? 

To these considerations history adds another, which 



— 127 — 

bears directly upon the matter in hand. It was ex- 
tremely improbable that the people of the American 
States should be willing to entrust this extraordinary 
and undefined power to their untried government. 
They were as well aware of its abuse by the House of 
Commons as of its existence, and they knew its nat- 
ural tendency to extravagance. They knew that it 
had been the doctrine of that house, that whatever it 
claimed as a, privilege became thereby a privilege. 
The judicial decisions which broke down that high 
pretension had not yet been made, and they had no 
certain ground for presuming that it would not be re- 
peated here, if the law which permitted it should be 
adopted. 

So far from having already grown more moderate, 
this theory was declared by the House of Commons 
itself fifty years later. Lord Denman said, in Stock- 
dale v. Hansard, 9 Adol. & Ell. 108, (1839) : " If the 
Attorney General was right in contending, as he did 
more than once in express terms, that the House of 
Commons, by claiming anything as its privilege, 
thereby makes it a matter of privilege, and also that 
its own decision upon its own claim is binding and 
conclusive, then plainly this court cannot proceed in 
any inquiry into the matter, and has nothing to do but 
declare the claim well founded because it was made. 
This is the form in which I understand the committee 
of a late House of Commons to have asserted the privi- 
leges of both houses of parliament, and we are informed 
that a large majority of that House adopted the asser- 
tion." 

But if the people of these States had no reason to 
apprehend new pretensions of privilege, it was enough 



— 128 — 

to know how far they had already been carried. They 
were aware, for example, that the House of Commons, 
assuming to define what was a libel, had, in times of 
political excitement, punished as libels publications 
which questioned its powers, and that one Parliament 
punished such offences offered to another Parliament; 
that, from time to time, throughout the century 
preceding our Revolution, such acts as entering upon 
the estates of members, distraining their goods, lopping 
their trees, killing their rabbits, or fishing in their 
ponds had been punished as breaches of privilege. 
It is immaterial that these were only instances of 
usurpation and not of lex parliamentaria ; for whether 
regarded as within or beyond that law, they would 
have the same effect in determining the disposition of 
our people toward that law itself — and it is of their 
disposition to import and adopt it, that we are speaking. 
But, as a matter of fact, they had no means of knowing 
what pretensions were legal and what were illegal ; for 
Englishmen had actually been deterred from testing 
them by appeals to the Courts of Justice. Such 
appeals had themselves been treated as breaches of 
privilege. In the language of Lord Denman, in the 
great case already referred to, "None could have 
commenced a suit of any kind for the purpose, without 
incurring the displeasure of the offended house, 
instantly enforced if it happened to be sitting, and 
visiting all who had been concerned. During the 
session, it must be remembered that privilege is more 
formidable than prerogative, which must avenge itself 
by indictment or information, involving the tedious 
process of the law; while privilege, with one voice, 
accuses, condemns, and executes. And the order to 



d ^ 



— 129 — 

'take him,' addressed to the sergeant-at-arms, may 
condemn the offender to persecution and ruin." 

It is impossible to imagine that these astonishing 
results of a power which refused to be defined should 
be unknown to intelligent persons in this country, or 
that they had been forgotten. Some of the most 
monstrous instances of its assertion, such as the noted 
case of Admiral Griffin's fishery, had occurred only a 
few years before our own con test with Parliament began. 
It could not fail to be fresh in the minds of all commun- 
ities which had been subject to the power of that body, 
that Parliament had been made almost odious, certainly 
unpopular, among Englishmen themselves, by its use 
of privilege. Is it probable, then, that the people of 
these States, smarting under their recollections of 
wrongs, and submitting themselves only with hesitation 
and jealousy to any new control, could have intended 
silently to open the door, or rather to leave it ajar, for 
the admission of a power so indefinite, so capable of 
abuse, and known to have been abused and to have 
become odious in its original home? Did they bestow 
powers upon these untried legislative assemblies with 
such tokens of confidence, that we must infer from 
their very silence that they consented to be imprisoned 
by them, in any case where these bodies might conceive 
their dignity to have been assailed? Mr. Justice 
Johnson said in Anderson's case, "that the exercise of 
the powers given over their own members was of such 
a delicate nature, that a constitutional provision became 
necessary to communicate it. Constituted as that body 
is, of the delegates of confederated States, some such 
provision was necessary to guard against their mutual 
jealousy; since every proceeding against a representa- 

17 



— 130 — 

tive would indirectly affect the honor or interests of 
the State which sent him." This particular reason did 
not apply to the private citizens of the States; but 
were those communities less jealous of the extent to 
which those citizens were to be subjected to the powers 
of the new government? We submit that their ex- 
perience and their known sentiments suggest an 
extreme improbability that a power so undefined by 
law and so prone to extravagance, would be granted ; 
and that the implications of History are as strong as 
the implications of the Constitution, that it was not 
granted. 

Finally we come to the proposition that the Con- 
stitution contains provisions which actually forbid 
either house of Congress to assume the exercise of 
this power, as an original constitutional grant to it by 
implication. 

By virtue of the general clause already referred to, 
the collective legislature has an express grant of 
power to make all laws which are necessary and 
proper for carrying into execution the powers and 
functions of every department and officer of this govern- 
ment, and among them the legislative power or func- 
tion. For this purpose, it may not only provide 
punishments for all acts which obstruct the power or 
function in question, but may provide instrumentali- 
ties for their infliction. As a matter of fact, this power 
has, as we have already seen, been exercised for the 
protection of the legislative function, and of the 
effective working of the two Houses of Congress. 
The Act of 24 January, 1857 (11 St., 155), which 
provided for the punishment of recusant witnesses, 



X 
(J 



— 131 — 

summoned before either House, or before a Com- 
mittee of either House, stood upon this ground alone. 
Its intent was to protect, not merely the legislative 
function, but the particular functions of each House ; 
in other words, to afford precisely the kind of pro- 
tection which is alleged to be the object and founda- 
tion of the power to punish for contempt. Now, if 
the collective legislature has control over this subject 
at all, it has such control in every case, and with 
regard to every form of obstruction, where the 
obstruction is offered by a person who is not a mem- 
ber. In the cases of members, the Constitution has 
vested in each House a power which is exclusive of 
legislative control ; but, with this exception, the col- 
lective Congress has complete legislative control over 
the whole subject of offences which obstruct the func- 
tions or privileges of either of its branches. It may 
determine what acts sTaalT constitute an obstruction or 
contempt, what penalties shall be inflicted upon the 
offender, and whether any particular kind of injury 
shall be punished at all. That this extent of power 
is vested in the whole Congress by an express grant 
of the Constitution, seems to have been conceded in 
- Anderson vs. Dunn, although the learned justice who 
delivered the opinion conceived that an attempt to 
define the acts which should be punished, would be 
absurd. 

Does not this express grant of power to the whole 
Congress make an end of the implication that the 
Constitution has granted to each House, independently, 
power over the same matter? If the Constitution 
has granted this power to each House directly, it 
must be an exclusive power, just as much as the power 



— 132 — 

to judge of the elections, returns, and qualifications of 
its own members ; to choose its own officers ; and to 
determine its own rules of proceeding. And, surely, 
it is not necessary to demonstrate that an exclusive 
power in one House and a collective power in the 
whole Congress, are irreconcilable ; or that, when 
the Constitution has expressly granted such power to 
one, we are not at liberty to imply that it has granted 
it to the other. 

In the next place, this implication of a separate 
]30wer in each House to punish contempts is forbidden, 
because the punishment of contempts was well under- 
stood, when the Constitution was framed, to be an 
exercise of judicial power ; and the whole judicial 
power of the United States was disposed of by that 
instrument, without giving this portion of it to the 
several Houses of Congress. 

What we mean by this proposition is, that it was 
known that the power of the House of Commons, in 
this matter, was a part of the judicial power of the 
realm, just as the jurisdictions of the common law, the 
Chancery, the Ecclesiastical, and the Admiralty 
Courts, were parts thereof; and that the House of 
Commons, in administering this portion of " the law 
of the land," acted in the capacity of a court, in as full 
a sense as those other tribunals were courts. We 
propose to examine the proofs of this statement. 

In the first place, the adjudication of punishment 
for an offence is, in its very nature, a judicial act, a 
judicial judgment ; and this is necessarily true, as well 
of the offence called a contempt, as of other offences. 
It was so regarded by the common law when the power 
to punish contempts was exercised by the Courts ; 



6 J 



— 133 — 

notwithstanding that proceeding has come to be spoken 
of as one of self-preservation ; Griesley's case, 8 Coke, 
38. In a word, it was a settled principle of the law 
of the land, long before this power and jurisdiction 
were vested in the House of Commons, that punish- 
ment of contempts by summary proceedings was an 
exercise of the judicial power, in the same sense and 
degree that punishment of other offences upon indict- 
ment was of that nature ; and so clear was this prin- 
ciple, that it came to be held that, when power to 
punish for contempt was given to a body of persons, 
they were thereby erected into a judicial body. 
Groenvelt vs. Burwell, 1 Ld. Ray., 454 ; 1 Salk., 200. 
Is there any ground for imagining that the law, in 
granting to the Commons power to do the same act, 
attributed a different character to the power itself? 
The conclusion should be, on the contrary, that the 
nature of the power defined the capacity of its posses- 
sors, and erected them, to that extent, into a judicial 
body. That the grant of this power to the House of 
Commons was recognized to be a distribution of the 
judicial power of the realm, is conclusively established 
by the single fact that, from that time, all other tri- 
bunals were incapable of such jurisdiction. The 
jurisdiction of the Commons was necessarily regarded, 
and therefore was in fact regarded, as that of a higher 
court, and was not to be shared by the inferior courts. 
This was essentially a distribution of the judicial 
power of the realm ; and the authorities show that it 
was held to be so in fact. 

In the first place, the House of Commons itself 
assumed to act as a court. Evidence of this is found 
both in the style of its orders and in its express 



— 134 — 

declarations. In 1586, when one White had arrested 
a member, it was ordered "that the Sergeant should 
warn White to be here to-morrow, sitting the court." 
1 Hatsell, 99. This language was used only forty- 
three years after Ferrers' case; the first in which 
power to try contempts was assumed. But they went 
further, and claimed to be technically a court of 
record. In 1592, when Thomas Fitzherbert, a mem- 
ber, was in execution, the matter was brought before 
the House by Sergeant Yelverton, and the question 
was, whether Fitzherbert should have the privilege. 
In the course of the debate it was resolved : " That 
this House, being a court of record, would take no 
notice of any matter of fact at all in the said case, but 
only of matter of record.' 7 1 Hatsell, 107. And in 
the famous Apology of 1604, they said to James I: 
" We avouch also that our House is a court of record, 
and so ever esteemed." It seems they not only 
claimed that character as against the King, but re- 
stricted their own proceedings to the theory that they 
were a court of record. 

This solicitude to be recognized, not merely as a 
court, but as technically a court of record, shows how 
distinctly the Commons themselves claimed that their 
power was judicial in the sense already known to the 
common law; and that, although limited, it was the 
same in kind with the judicial power exercised at 
Westminster Hall. It is impossible to mistake the 
sense in which they called themselves a court, when 
they were so careful to clothe themselves in the very 
fashions of judicial power. We know that the phrase 
was full of purpose. And they might well say that 
they had at least exercised the powers of a court of 



— 135 — 

record before James's time. In sentencing Arthur 
Hall, in 1580, to a definite term of imprisonment and 
to the payment of a fine to the Queen, they had 
assumed precisely the functions of such a court. 
Indeed, so deadly earnest were they about the nature 
of their judicature, that they even attempted to ex- 
ercise a general criminal jurisdiction. In 1621, when 
one Floyde, a catholic barrister, exulted over the 
mishaps of the Palatinate, they impeached him, as 
they called it, before their own house, and sentenced 
him to cruel punishments. In their debate they 
insisted that they had judicial criminal jurisdiction as 
much as the Lords, and could act alone. They gave 
way, it is true, when the Lords protested and the King 
asked them for precedents, and proceeded in the end 
by formal impeachment ; but the very extravagance 
of their pretensions shows what they meant by judicial 
power. 

But, however extravagant their pretensions may 
have been, their pretension to some extent of judicial 
power was universally accepted. The common-law 
courts and writers recognized their power in the matter 
of privilege to be judicial power in the exact sense to 
which they were accustomed. 

In 4 Inst. 23, Coke said: "Now order doth require 
to treat of other matters of judicature in the lords' 
house, and of matters of judicature in the House of 
Commons. And it is to be known that the Lords in 
their house have power of judicature, and. the Com- 
mons in their house have power of judicature, and 
both houses together have power of judicature." He 
then cites commitments for breach of privilege as 
examples of the judicature of the Commons. In other 



— 136 — 

words, the jurisdiction of the Commons in the matter of 
privilege, and the judicial jurisdiction of the High 
Court of Parliament, which included both Houses, are 
classed together and described by the same word, and 
are thus alleged to be equally judicial power. 

Sir Orlando Bridgeman, who was Chief Justice of 
the Court of Common Pleas in Charles IPs time, was 
no friend of privilege, having been himself expelled 
by the Commons ; but in the famous case of Benyon 
vs. Evelyn, while denying the particular privilege in 
question, he distinctly recognized that house as a court. 
He said : " I should have been glad not to have had 
occasion to have delivered my opinion on this point 
for two reasons; first, because it is a tender thing for 
an inferior court to judge of the privileges of a superior 
court," etc. Hargrave's MS. p. 6; Bridgeman's Pep. 
324. 

In 1704 the cases of the Aylesbury — men renewed 
with great heat the discussion of the capacity in which 
the Commons acted in committing for breach of privi- 
lege. It was clear enough that an action against a re- 
turning officer, for wrongfully and maliciously rejecting 
a vote, did nof touch the privilege of the Commons to 
judge of the election itself; and nothing short of an in- 
flexible rule could have prevented the courts from going 
behind the return to the writs of habeas corpus, and 
finding that the plaintiffs were imprisoned without 
having committed a contempt. But the rule was rigid 
and prevailed. In Queen vs. Petty, 2 Lord Raymond, 
1109, 3 Anne, Mr. Justice Gould said: "If this had 
been a return of commitment by an inferior court, it 
had been naught, because it did not set out a sufficient 
cause of commitment; but this return being a com- 



137 



mitment by the House of Commons, which is superior 
to this Court, it is not reversible for form." Mr. Justice 
Powys was more explicit. He said: "The House of 
Commons is a great court, and all things done by it 
are to be intended to have been rite actce. * * The 
second objection was, that the warrant was not under 
seal, and 2 Ins., 52 is, that warrants of commitment 
must be in writing, under hand and seal. But to this I 
answer, that the House of Commons is a court, and so 
my Lord Coke says in his 4 Ins., 23; and commitments 
by a court need not be under hand and seal." It should 
be observed that this reasoning assumes that the 
House of Commons was a court in the most technical 
sense. Mr. Justice Powell dealt more philosophically 
with the matter, and explained that the Commons 
were a court to administer a separate branch of law, 
and were governed by the principles of that law. He 
said: "There is a lex parliamenti ; for the common law 
is not the only law in this Kingdom ; and the House 
of Commons do not commit by the common law, but 
by the law of Parliament. * * * The Commons have a 
power of judicature, and so is 4 Ins., 23; but that is 
not by the common law, but by the law of Parliament, 
to determine their own privileges ; and it is by this law 
that these persons are committed. This Court may 
judge of privilege, but not contrary to the judgment of 
the House of Commons; which yet we must do in this 
case if we discharge these persons from their imprison- 
ment; which is the only judgment the House of 
Commons can give upon their determination that 
these persons have been guilty of a breach of their 
privileges. * * * The Court of Parliament is a superior 
court to this court ; and though the King's Bench have 

18 



— 138 — 

a power to prevent excesses in courts, yet they cannot 
prevent excesses in Parliament; because that is a 
superior court to them." 

In 1751, Alexander Murray, being committed by 
the House of Commons for refusing to kneel at its bar, 
sued out a writ of habeas coi^pus ; but the King's Bench 
refused to discharge him. In Rex vs. Murray, 1 
Wilson, 299, Mr. Justice Wright said : "The House of 
Commons is undoubtedly a high court, and it is agreed 
on all hands that they have power to judge of their own 
privileges; it need not appear to us what the contempt 
was, for if it did apjDear, we could not judge thereof. 
* * * The House of Commons is superior to this court 
in this particular." And Foster/ J. said: "The law of 
Parliament is part of the law of the land, and there 
would be an end of all law if the House of Commons 
could not commit for a contempt; all courts of record, 
even the lowest, may commit for contempt." 

Twenty years later, the capacity in which the 
House of Commons acted in punishing contempts was 
stated still more emphatically in the famous case of 
Brass Crosby, 3 Wilson, 188. Lord Chief Justice De 
Grey said : " Lord Coke says they have a judicial 
power ; each member has a judicial seat in the House ; 
he speaks of matters of judicature of the House of 
Commons, 4 Ins., .23 * * All contempts are 

either punishable in the court contemned, or in some 
higher court; now the Parliament has no superior 
court; therefore the contempts against either House 
can only be punished by themselves. * * * When 
the House of Commons adjudge anything to be a 
contempt, or a breach of privilege, their adjudication 
is a conviction, and their commitment, in consequence, 



— 139 — 

is execution ; and no court can discharge, or bail, a 
person that is in execution by the judgment of any 
other court. The House of Commons, therefore, hav- 
ing an authority to commit, and that commitment 
being an execution, the question is, what can this 
court do ? It can do nothing when a person is in 
execution by the judgment of a court having a com- 
petent jurisdiction ; in such a case this court is not a 
court of appeals." And, in referring to Murray's case, 
the learned Chief Justice said : "All the judges agreed 
that he must be remanded, because he was committed 
by a court having competent jurisdiction!' In the 
same case Gould, J., said : "They are the only judges 
of their own privileges ; and that they may properly 
be called judges, appears, in 4 Ins., 47, where my 
Lord Coke says, an alien cannot be elected of the 
Parliament, because such a person can hold no place 
of judicature." Mr. Justice Blackstone was still 
more pointed. He said : " The House of Commons 
is a supreme court, and they are judges of their own 
privileges and contempts, more especially with re- 
spect to their own members : here is a member 
committed in execution by the judgment of his own 
House. All courts, by which I mean to include the 
two Houses of Parliament and the courts of West- 
minster Hall, can have no control in matters of 
contempt. The sole adjudication of contempts, and 
the punishment thereof, in any manner, belongs, 
exclusively and without interfering, to each respective 
court. Infinite confusion and disorder would follow, 
if courts could, by writ of habeas corpus, examine and 
determine the contempts of others. * * * No 
other court shall scan the judgment of a superior 



— 140 — 

court, or the principal seat of justice; as I said before, 
it would occasion the utmost confusion if every court 
of this Hall should have power to examine the com- 
mitments of the other courts of the Hall for con- 
tempts ; so that the judgment and commitment of each 
court, as to contempts, must be final and without 
control." 

It is to be observed that, in all these opinions, the 
matter in hand was disposed of on the ground that not 
the slightest distinction could be made between the 
power exercised by the House of Commons and the 
power exercised by the courts of Westminster Hall. 
Even on the most technical points the same rule was 
held to be applicable to both bodies, because both 
were courts, administering, in an equal sense, judicial 
power. 

It is a singular fact that Mr. Justice Story, who was 
of the opinion that the power to punish contempts was 
incident to legislative assemblies, should have cited 
Brass Crosby's Case, in order to show the conclusive- 
ness of a commitment for contempt by an ordinary 
court of justice. In Ex parte Kearney, 7 Wheaton, 
38, having laid down the proposition that, " When a 
court commits a party for a contempt, their adjudication 
is a conviction, and their commitment, in consequence, 
is execution," he added : "So the law was settled, upon 
full deliberation, in the case of Brass Crosby, Lord 
Mayor of London, 3 Wilson, 188. Indeed, in that 
case the same point was before the court as in this. 
It was an application to the Court of Common Pleas 
for an habeas corj3us, to bring up the body of the 
Lord Mayor, who was committed for contempt by the 
House of Commons." The point under consideration 



/ 



— 141 — 

was, the conclusiveness of a commitment for contempt 
by a court, and the learned judge assumed, that com- 
mitment by the House of Commons was an example 
of such commitment, and illustrated its conclusive- 
ness. 

It appears, then, that for two centuries before the 
adoption of our Constitution, it had been understood 
that the House of Commons exercised its power to 
punish contempts in the capacity of a court ; and it 
appears by the same cases that it was understood to 
exercise a distributive share of the judicial power of 
the realm. "When Mr. Justice Powell, delivering his 
opinion in JPaty's case, said : " There is a lex Parlia- 
menti; for the common law is not the only law in this 
kingdom; and the House of Commons do not commit 
men by the common law, but by the law of Parlia- 
ment," and added that the Commons had " power of 
judicature * * * by the law of Parliament/' he 
meant to explain that there was a distribution of 
judicial power, and that so much thereof as was of 
" common law " had been given to the courts at 
Westminster Hall, and that so much thereof as was 
legis Parliaments had been given to the Houses of 
Parliament. This distribution of judicial power was 
effected by the British Constitution, and the House 
of Commons was held by that Constitution to be a 
court having competent jurisdiction to administer 
its share of the law. (a) It took this share to the 



(a) In showing that the House of Commons was understood, when the 
Constitution of the United States was adopted, to be a Court, and to act in 
that capacity when it punished contempts, only decisions of a prior date 
have been cited in the text. Decisions of a later date are authoritative, 
however, to prove what the original theory was. Attention is, therefore 



— 142 — 

exclusion of all other courts, just as the Admiralty 
and Ecclesiastical and common law courts took their 
peculiar shares ; and the whole of their jurisdictions, 
together, made up the judicial power of the realm. 

With a full comprehension of this fact, the framers 
of our written Constitution undertook to make their 
distribution of judicial power. We will cite all of 
the provisions which can be supposed to touch that 
distribution. 



called to some of them in this note. In the case of JBurdett vs. Abbott, 14 
East, 1 (1811), Lord Ellenborough used the following expressions: " Can 
the High Court of Parliament, or either of the two Houses, of which it con- 
sists, be deemed not to pos'sess, intrinsically, the authority to punish sum 
marily for contempts, which is acknowledged to belong, and is daily 
exercised as belonging, to every superior court of law, of less dignity, 
undoubtedly, than itself? * * * Upon this subject I will only say that 
if a commitment appeared to be for a contempt of the House of Commons, 
generally, I would neither, in the case of that Court or of any other of the 
superior courts, inquire further." In 1820, it was said in Rex vs. Hobhouse, 
\ 2 Chitty, 210 : " The power of commitment for contempt is incident to every 
court of justice, and, more especially, it belongs to the High Court of Parlia- 
ment." And, in 1847, Baron Parke, delivering the opinion of the Exchequer 
Chamber, in Gossettvs. Howard, 10 Adol. and Ell., 455, said: "The House 
of Commons is a part of the High Court of Parliament, which is, without 
question, not merely a superior but the supreme court in this country, and 
higher than the ordinary courts of law. Lord Camden, in Entick vs. Car- 
rington, 10 How. St. Tr. 1047. And if we give credit to the courts of com- 
mon law that they will not issue writs of attachment, except in due course 
and in accordance with the power which the law gives them, and that, not- 
withstanding the possible abuse of the liberty of the subject to which this 
principle may give rise by enabling the court to imprison for any cause, 
why should we not equally give credit to both branches of the High Court 
of Parliament that they, also, will duly execute their powers in obedience to 
the law from which they derive them, and to which, in common with all 
other courts, they are subject, though their course may also, possibly, lead to 
the same consequence, the abuse of the liberty of the subject, by their 
imprisoning any one at their mere will and pleasure ?" In all of these 
cases the power of the House of Commons was sustained, not on the ground 
that it was analogous to that of the courts, but on the ground that it was, 
itself, a court. 



143 



The third section of Article 1 provides : " The 
Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose, they shall be 
on oath or affirmation. When the President of the 
United States is tried, the Chief Justice shall preside ; 
and no person shall be convicted without the con- 
currence of two-thirds of the members present. 

''Judgment in cases of impeachment shall not 
extend further than to removal from office, and 
disqualification to hold and enjoy any office of honor, 
trust or profit under the United States : but the party 
convicted shall nevertheless be liable and subjecTtb 
indictment, trial, judgment and punishment according 
to law." 

The fourth section of Article 2 provides: "The 
President, Vice-President and all civil officers of the 
United States, shall be removed from office on im- 
peachment for, and conviction of, treason, bribery, or 
other high crimes and misdemeanors." 

The fifth section of Article 1 provides: "Each house 
shall be the judge of the elections, returns and quali- 
fications of its own members, and a majority of each 
shall constitute a quorum to do business; but a smaller 
number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, 
in such manner and under such penalties as each house 
may provide. 

"Each house may * * punish its members for disor- 
derly behavior, and, with the concurrence of two- 
thirds, expel a member." 

The ninth section of Article 1 provides : " No bill 
of attainder * * shall be passed." 

Article 3 provides: "The judi cial power of the 



— 144 — 

United States shall be vested in one Supreme Court, 
and in such inferior courts as the Congress may from 
time to time ordain and establish. The Judges, both of 
the supreme and inferior courts, shall hold their offices 
during good behavior, and shall, at stated times, receive 
for their services a compensation which shall not be 
diminished during their continuance in office. 

"The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws 
of the United States, and treaties made, or which shall 
be made, under their authority; to all cases affecting 
ambassadors, other public ministers and consuls; to all 
cases of admiralty and maritime jurisdiction; to con- 
troversies to which the United States shall be a party; 
to controversies between two or more States; between 
a State and citizens of another State; between citizens 
of different States; between citizens of the same State 
claiming lands under grants of different States, and 
between a State, or the citizens thereof, and foreign 
States, citizens or subjects. 

"In all cases affecting ambassadors, other public 
ministers and consuls, and those in which a State shall 
be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, 
the Supreme Court shall have appellate jurisdiction, 
both as to law and fact, with such exceptions, and 
under such regulations as the Congress shall make. 

"The trial of all crimes, except in cases of impeach- 
ment, shall be by jury; and such trial shall be held in 
the State where the said crimes shall have been 
committed; but when not committed within any State, 
the trial shall be at such place or places as the Con- 
gress may by law have directed." 



— 145 — 

The Amendments of the Constitution, relating to the 
exercise of judicial power, do not furnish any furher 
illustration of its distribution ; but it is proper that they 
should be cited, in order that every provision touch- 
ing that power may be presented. They are as follows : 

: ■ Article 4. The right of the people to be secure 
in their persons, houses, papers and effects against 
unreasonable searches and seizures, shall not be vio- 
lated, and no warrant shall issue, but upon probable 
cause,, supported by oath or affirmation, and particu- 
larly describing the place to be searched, and the 
persons or things to be seized." 

" Article 5. No person shall be held to answer for 
a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the 
militia, when in actual service in time of war, or 
public danger; nor shall any person be subject for 
the same offence to be twice put in jeopardy of life 
or limb; nor shall be compelled, in any criminal 
case, to be a witness against himself, nor be deprived 
of life, liberty, or property, without due process of 
law ; nor shall private property be taken for public 
use, without just compensation. 

"Article 6. In all criminal prosecutions, the accused 
shall enjoy the right to a speedy and public trial ; by 
an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall 
have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation ; to 
be confronted with the witnesses against him ; to have 
compulsory process for obtaining witnesses in his favor, 
and to have the assistance of counsel for his defense." 



19 



— 146 — 

" Article 7. In suits at common law, where the value 
in controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved, and no fact tried by a 
jury shall be otherwise re-examined in any court of the 
United States, than according to the rules of the com- 
mon law. 

" Article 8. Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel and unusual 
jDunishment inflicted." 

These provisions of the original Constitution, and 
of the amendments made contemporaneously, suggest 
two considerations. First. It is impossible to read 
them without arriving at the conclusion that they* 
contain all that the founders of this Government had 
to say, either of power that was technically judicial, 
or of power that was judicial in its nature and opera- 
tion, and that they were intended to exhaust that 
subject. They vest certain judicial powers in the 
several branches of Congress, and certain other 
judicial powers in the courts of the United States. 
The provisions 'relating to the latter were manifestly 
intended to be exhaustive, and we have a right to 
suppose that the same intent prevailed in both cases. 
It follows that, on a principle which has already been 
explained, these elaborate affirmative provisions ex- 
clude an implication of any other judicial power, 
whether technically or effectually judicial. In other 
words, the power claimed for the two Houses of Con- 
gress, being judicial power, and not being mentioned 
in this exhaustive statement of the judicial powers dis- 
tributed among the departments of the Government, 
must be denied on the principle of mere exclusion. 
The second consideration is, that a direct grant of this 



— 147 — 



share of judicial power to the several branches of 
Congress cannot exist by implication, because the Con- 
stitution has otherwise disposed of that very power, by 
granting to another department a power which extends 
to and covers it. By authorizing the whole Congress 
to make laws providing punishment for contempts of- 
fered to either of its branches, and by extending " the 
judicial power of the United States " to all cases arising 
under such laws, the Constitution has authorized 
punishment of such offences by the courts of the United 
States. Now, inasmuch as a direct grant to each sepa- 
rate House, of jurisdiction over, this class of offences, 
must be a grant of exclusive power, just as a grant of 
power to punish its own members for disorderly con- 
duct is exclusive, such exclusive power and a power 
of the courts cannot co-exist. As the latter has been 
provided for expressly, the former inconsistent power 
cannot be implied. It is simply impossible that the 
Constitution should have intended to imply a power 
which was inconsistent with its own express provisions. 
In short, the power to punish contempts of either 
House of Congress has been placed by the Constitu- 
tion, and there is no room for another claimant. They 
must be punished through the intervention of the 
"judicial power of the United States," vested in the 
Courts of the United States. 

If this conclusion be well founded, another follows : 
no particular act can be punished as an offence 
against the authority or privileges of either House of 
Congress, until that act shall have been made an 
offence by statute. It has been settled that this Gov- 
ernment ~has no unwritten criminal code, to which 
resort can be had as a source of jurisdiction. The 



— 148 — 

courts of the United States must find the crimes which 
they undertake to punish, designated in the written 
law. United States vs. Hudson, 7 Cranch, 32 ; United 
States vs. Coolidge, 1 Wheaton, 415 ; Pennsylvania vs. 
Wheeling Bridge, 13 Howard, 519; United States vs. 
Lilly, 1 Wood. & M., 222 ; United States vs. New 
Bedford Bridge, lb. 401 ; United States vs. Lancaster, 
2 McLean, 431. The only offences against Congress 
which have thus far been defined by statute, are brib- 
ery of members, Act 20 February, 1853, 10 Stat., 
171 ; and the refusal of witnesses to testify when sum- 
moned before either House or before a committee of 
either House; Act 24 January, 1857, 11 Stat., 155. 

In conclusion, we revert to the emphatic declaration 
of Mr. Justice Johnston, in Anderson vs. Dunn: that 
this power, " if it exists, must be derived from impli- 
cation " from the Constitution. It must stand as a 
power vested by that instrument directly in each 
House of Congress, on the same footing with its exclu- 
sive power to determine its own rules of proceedings, 
or it cannot stand at all. It is claimed that no such 
power has been granted. First. Because the Constitu- 
tion contains no affirmative implication that it has 
been granted. Second. Because the Constitution 
contains implications that it has not been granted ; 
and, Third. Because the Constitution has not left this 
power dependent on implication, but has actually dis- 
posed of it in a manner which absolutely prohibits 
either House of Congress to exercise it ; having, by its 
express provisions, made punishment of contempts 
dependent wholly upon legislation, and applicable 
solely by " the judicial power of the United States.'' 

If the conclusions reached in this inquiry be correct, 



— 149 — 

it does not follow that the privileges and dignity of 
the two houses of Congress should lose one jot of the 
protection which has hitherto surrounded them. That 
protection should, if possible, be even more effective 
than it has been; and the Constitution has furnished 
the means of making it so. The substitution of 
tribunals known to be unaffected by personal resent- 
ment, for a tribunal known to be affected by a sense of 
injured dignity and by party spirit; and the infliction 
of solemn punishment, defined and sanctioned by laws, 
in the stead of punishment prescribed by a law which 
is not known, and which has authority only by 
implication, would insure a common belief that the 
offence was grave, and that the punishment was just. 
A judicial conviction and sentence would accomplish 
what a commitment by order of either House has 
hitherto failed to accomplish;' they would render the 
offence discreditable. And if it should be objected 
that judicial proceedings would, by reason of their 
slowness, impair the efficiency and defeat the objects 
of such punishment, it should be remembered that 
prompter methods may be contrived, without violating 
any provision of the Constitution. But even if this 
defect should prove to be, to some extent, permanent, 
it is still true that methods of administering criminal 
justice which are universally known to be authorized 
and trustworthy, are more useful than any method 
can be which is manifestly discordant with all our 
other constitutional habits, and which never fails to 
excite some apprehension touching its legality and 
fairness. 



— 150 — 



APPENDIX. 



Anderson vs. Dunn. 

6 Wheaton, 204. 

Error to the Circuit Court of the District of 
Columbia. 

This was an action of trespass, brought in the 
court below, by the plaintiff in error against the 
defendant in error, for an assault and battery and 
false imprisonment ; to which the defendant pleaded 
the general issue, and a special plea of justification. 
The plaintiff demurred generally to the special plea, 
which was adjudged good, and the demurrer over- 
ruled ; and judgment upon such demurrer was entered 
for the defendant, and a writ of error brought by the 
plaintiff. The question arising upon the demurrer 
will be best explained by giving the defendant's plea 
at large, as pleaded and adjudged good upon general 
demurrer in the Circuit Court, namely : 

And the said Thomas, by the leave of the court 
here first had, further defends the force and injury, 
when, etc. And as to the coming with force and arms, 
or whatsoever is against the peace ; and also as to the 
assaulting, beating, bruising, battering, and ill-treat- 
ing of the said John, in manner and form as the said 
John, in his said declaration, hath above supposed to 
be done, the said Thomas saith that he is not guilty 
thereof; and of this he, as before, puts himself upon 



__- 151 — 



the country. And as to the imprisonment of the said 
John, and the keeping and detaining him in con- 
finement, at the time in the said declaration mentioned, 
to wit, on the eighth day of January, in the year one 
thousand eight hundred and eighteen, and for the 
space of two months, in the said declaration mentioned, 
the said Thomas saith that the said John ought not 
to have or maintain his action aforesaid against him, 
because he saith that long before and at the said time 
when, etc., in the introduction of this plea mentioned, 
and during all the time in said declaration mentioned, 
a Congress of the United States was holden at Wash- 
ington, in the county of Washington, and District of 
Columbia aforesaid, and was then and there, and 
during all the time aforesaid, assembled and sitting ; 
and that long before and at the time when, etc., in 
the introduction of this plea mentioned, and during 
all the time in the said declaration mentioned, he, the 
said Thomas, was, and yet is, Sergeant-at-arms of the 
House of Kepresentatives, (then and there being one 
of the Houses whereof the said Congress of the United 
States consisted,) and by virtue of his said office, and 
by the tenor and effect of the standing rules and orders 
ordained and established by the said House for deter- 
mining of the rules of its proceedings, and by the 
force and effect of the laws and customs of the said 
House, and of the said Congress, was then and there, 
and during all the time aforesaid, and yet is duly 
authorized and required, amongst other things, to 
execute the commands of the said House, from time 
to time, together with all such process issued by 
authority thereof, as shall be directed to him by the 
Speaker of the said House ; and that long before, and 



— 152 — 

at the time when, etc., in the introduction of this plea 
mentioned, and during all the time in the declaration 
mentioned, one Henry Clay was, and yet is, the 
Speaker of the said House of Representatives, and by 
virtue of his said office, and by the tenor and effect of 
such standing rules and orders as aforesaid, and by 
the force and effect of such laws and customs as afore- 
said, then and there, and during all the time aforesaid, 
was, and yet is, amongst other things, duly author- 
ized and required to subscribe with his proper hand, 
and to seal with his seal, all writs, warrants and sub- 
poenas issued by the order of the said House ; and 
that long before and at the time when, etc., in the 
introduction of this plea mentioned, and during all 
the time in the said declaration mentioned, one 
Thomas Dougherty was, and yet is, the clerk of the 
said House of Representatives ; and by virtue of his 
said office, and by the tenor and effect of such stand- 
ing rules and orders as aforesaid, and by the force and 
effect of such laws and customs as aforesaid, then and 
there, and during all the time aforesaid, was, and yet is, 
amongst other things, duly authorized and required to 
attest and subscribe with his proper hand, all such writs, 
warrants and subpoenas issued by order of the said 
House; and that long before, and at the time when, etc., 
in the introduction of this plea mentioned, and during 
all the time in the said declaration mentioned, and 
ever since, it was, and yet is, amongst other things, 
ordained, established and practiced, by and under 
such standing rules and orders as aforesaid, arid such 
laws and customs as aforesaid, that all writs, warrants, 
subpoenas, and other process issued by order of the 
said House, shall be under the hand and seal of the 



153 



said Speaker of the said House, and attested by the 
said clerk of the said House ; and, so being under the 
hand and seal of the said Speaker, and attested by the 
said clerk, as aforesaid, shall be executed pursuant to 
the tenor and effect of the same, by the said Sergeant- 
at-arms ; and the said Thomas, the defendant, further 
saith that the said Henry Clay, so being such Speaker 
of the said House of Representatives as aforesaid, and 
the said Thomas Dougherty, so being such clerk of 
the same House as aforesaid, and he the said defen- 
dant, so being such Sergeant-at-arms of the same 
House as aforesaid, and the said Congress so being 
assembled and sitting as aforesaid, heretofore and 
before the said time when, etc., in the introduction of 
this plea mentioned, to wit, on the seventh day of 
January, in the year aforesaid, at Washington afore- 
said, in the county and district aforesaid, it was, in 
and by the said House, for good and sufficient cause 
to the same appearing, resolved and ordered, pursuant 
to the tenor and effect of such standing rules and 
orders so ordained and established as aforesaid, and 
according to the force and effect of such laws and 
customs as aforesaid, that the said John had been guilty 
of a breach of the privileges of the said House, and of 
a high contempt of the dignity and authority of the 
same ; wherefore, it was then and there, in and by the 
said House, further resolved and ordered, in the like 
pursuance of such standing rules and orders as afore- 
said, and of such laws and customs as aforesaid, that 
the said Speaker should forthwith issue his warrant, 
directed to the Sergeant-at-arms, commanding him to 
take into custody the body of the said John, wherever 
to be found, and the same forthwith to have before the 

20 



154 



said House, at the bar thereof, then and there to answer 
to the said charge, etc., as by the journal, record and 
the proceedings of the said resolutions and order in 
the said House remaining, reference being thereto had, 
will more fully appear. Whereupon, the said Henry 
Clay, so being such Speaker as aforesaid, in pursuance 
of such standing rules and orders as aforesaid, and 
according to such laws and customs as aforesaid, did, 
for the execution of the resolution and order aforesaid, 
afterwards and before the time when, etc., in the 
introduction of this plea mentioned, to wit, on the 
seventh day of January, in the year aforesaid, at 
Washington aforesaid, in the county aforesaid, as such 
Speaker as aforesaid, duly make and issue his certain 
warrant, under his hand and seal, duly directed to the 
said Thomas, the defendant, as such Sergeant-at-arms, 
as aforesaid, (to whom, so being such Sergeant-at- 
arms as aforesaid, the execution of that warrant then 
and there belonged,) and by the said Thomas Dough- 
erty, so being such clerk as aforesaid ; in and by said 
warrant, reciting that the said House of Representa- 
tives had, that day, resolved and adjudged that the said 
John Anderson had been guilty of a breach of the privi- 
leges of the said House, and of a high contempt of its 
dignity and authority ; and that the said House had 
thereupon ordered the Speaker to issue his warrant 
directed to the said Sergeant-at-arms, commanding 
him, the said Sergeant, to take into custody the body 
of the said John Anderson, wherever to be found, 
and the same forthwith to have before the said House, 
at the bar thereof , then and there to answer to the said 
charge; therefore, it was required that the said 
Thomas, the defendant, as such Sergeant as aforesaid, 



— 155 — 

should take into his custody the body of the said John 
Anderson, and then forthwith to bring him before the 
said House at the bar thereof, then and there to answer 
to the charge aforesaid, and to be dealt with by the said 
House, according to the Constitution and laws of the 
United States; and the said Henry Clay, so being 
such Speaker as aforesaid, then and there, and before 
the said time when, etc., in the introduction of this 
plea mentioned, delivered the said warrant to the said 
Thomas, so being such Sergeant as aforesaid, to be 
executed in due form of law. By virtue, and in exe- 
cution of which said warrant, the said Thomas, as such 
Sergeant as aforesaid, afterwards, to wit, at the same 
time when, etc., in the introduction of this plea men- 
tioned, at Washington aforesaid, in order to arrest the 
said John, and convey him in custody to the bar of 
the said House, to answer to the charge aforesaid, and 
to be dealt with by the said House according to the 
Constitution and laws of the United States, in obe- 
dience to the resolutions and order aforesaid, and to 
the tenor and effect of the said warrant, so issued as 
aforesaid, went to the said John, and then and there 
gently laid his hands on the said John to arrest 
him, and did then and there arrest him by his body, 
and take him into custody, and did then forthwith 
convey him to the bar of the said House, as it was law- 
ful for the said Thomas to do for the cause aforesaid ; 
and thereupon such proceedings were had, in and by 
the said House, that the said John was then and there 
forthwith duly examined, and heard in his defense, be- 
fore the said House, at the bar thereof, touching the 
matter of the said charge ; and that such examination 
was, in and by the said House, and by the resolutions 



— 156 — 

and orders of the same, duly adjourned and continued 
from day to day, from the time when, etc., in the intro- 
duction of this plea mentioned, until the sixteenth day 
of January, in the year aforesaid ; which said examina- 
tions were then so adjourned and continued, as afore- 
said from necessity, in order to go through and con- 
clude the examination and defence of the said John, 
touching the matter of the said charge, before the said 
House ; neither the said examination, nor the said de- 
fense having been finished or concluded before the day 
last aforesaid ; during all which time, to wit, from the 
said time when, etc., in the introduction of this plea 
mentioned, until the day last aforesaid, it was, in and 
by the said House, duly resolved and ordered, from 
day to day, as the said examination was adjourned 
and continued as aforesaid, that the said John should 
be remanded, kept, and detained in the custody of the 
said Thomas, as such Sergeant aforesaid, by virtue and 
in execution of the said warrant,' in order to have such 
his examinations and defense finished and concluded 
in due form ; and the said Thomas, as such Sergeant 
as aforesaid, afterwards, to wit, at and from the said 
time when, etc., in the introduction of this plea men- 
tioned, until the said sixteenth day of January, in the 
year aforesaid, did, in pursuance of the last-mentioned 
resolutions and orders of said House, and by virtue, 
and in execution of the said warrant, keep and detain 
the said John in custody as aforesaid, and him did bring 
and have, from day to clay, during the said time, 
before the said House, at the bar thereof, in order to 
undergo such examinations as aforesaid, and to be 
heard in his defense aforesaid, touching the matter of 
the said charge, to wit, at Washington aforesaid, in 



— 157 — 

the county aforesaid, as it was also lawful for him, the 
said Thomas, to do for the cause aforesaid ; and there- 
upon afterwards, to wit, on the said last-mentioned 
sixteenth day of January, in the year aforesaid, such fur- 
ther proceedings were had in and by the said House 
that it was then and there finally resolved and adjudged 
in and by the said House, that the said John was 
guilty and convicted of the charge aforesaid, in the 
form aforesaid ; and that he be forthwith brought to 
the bar of the said House, and there reprimanded by 
the said Speaker, for the outrage by the said John 
committed, and then that he be forthwith discharged 
from the custody of the said Sergeant-at-arms ; and 
thereupon the said John was then and there, in pur- 
suance of the last-mentioned resolutions, order and 
judgment, forthwith reprimanded by the said Speaker, 
and then forthwith discharged from the arrest and 
custody aforesaid; as by the journals, record and 
proceedings of the said resolutions, orders, and judg- 
ment in the said House remaining, reference being 
thereto had will more fully appear; which are the 
same several supposed trespasses in the introduction 
of this plea mentioned, and whereof the said John 
hath, above in his said declaration, complained 
against the said Thomas, and not other or different ; 
with this, that the said Thomas doth aver that the 
said John, the now plaintiff, and the said John 
Anderson, in the said resolutions, orders, warrants, 
and judgment respectively mentioned, was, and is, one 
and the same person ; and that the said several times 
in this plea mentioned, and during all the time 
therein mentioned, the said Congress of the United 
States was assembled and sitting, to wit, at Washing- 



— 158 — 

ton aforesaid, in the county aforesaid ; and this the 
said Thomas is ready to verify ; wherefore he prays 
judgment, if the said John ought to have or main- 
tain his aforesaid action against him, etc. 

Johnson, J., delivered the opinion of the court. 

Notwithstanding the range which has been taken 
by the plaintiff's counsel, in the discussion of this 
cause, the merits of it really lie in a very limited 
compass. The pleadings have narrowed them down 
to the simple inquiry, whether the House of Repre- 
sentatives can take cognizance of contempts committed 
against themselves, under any circumstances? The 
duress complained of was sustained under a warrant 
issued to compel the party's appearance, not for the 
actual infliction of punishment for an offense committed. 
Yet it cannot be denied, that the power to institute a 
prosecution must be dependent upon the power to pun- 
ish. If the House of Representative possessed no au- 
thority to punish for contempt, the initiating process 
issued in the assertion of that authority must have been 
illegal ; there was a want of jurisdiction to justify it. 

It is certainly true, that there is no power given by 
the Constitution to either House to punish for con- 
tempts, except when committed by their own members. 
Nor does the judicial or criminal power given to the 
United States, in any part, expressly extend to the 
infliction of punishment for contempt of either house, 
or any one coordinate branch of the government. 
Shall we, therefore, decide that no such power 
exists? (a) 

(a) It is implied in this passage that the Constitution has omitted to 
extend the judicial power of the United States to the punishment of con- 
tempts of Congress, just as much as it has omitted to extend the power of 
the several houses to that subject; in other words, that they stand on the 



— 159 — 

It is true that such a power, if it exists, must be 
derived from implication, and the genius and spirit of 
our institutions are hostile to the exercise of implied 
powers. Had the faculties of man been competent to 
the framing of a system of government which would 
have left nothing to implication, it cannot be doubted 
that the effort would have been made by the framers 
of the Constitution. But what is the fact? There is 
not in the whole of that admirable instrument, a 
grant of powers which does not draw after it others, 
not expressed, but vital to their exercise ; not substan- 
tive and independent, in deed, but auxiliary and 
subordinate. 

The idea is Utopian, that government can exist 
without leaving the exercise of discretion somewhere. 
Public security against the abuse of such discretion 
must rest on responsibility, and stated appeals to 
public approbation. Where all power is derived from 
the people, and public functionaries, at short intervals, 
deposit it at the feet of the people, to be resumed again 
only at their will, individual fears may be alarmed by 
the monsters of imagination, but individual liberty 
can be in little danger. 

No one is so visionary as to dispute the assertion, 



same footing as to any express provision which enables their power to reach 
the subject. Manifestly this is an error. The Constitution does not specify 
contempts of Congress, as a matter to which the judicial power extends; but 
it does expressly extend that power to the punishment of any act which 
Congress may constitutionally declare to be an offense. It is on the ground 
that it does so extend, that all existing crimes against the United States 
are punishable by the courts of the United States ; and contempts of Congress 
are provided for in precisely the same manner with the whole body of 
crimes. There is therefore the broadest difference between the positions of 
the courts and of the two houses of Congress. The Constitution has expressly 
extended the power of the former to this subject, and is silent as to the latter. 



— 160 — 

that the sole end and aim of all our institutions is the 
safety and happiness of the citizen. But the relation 
between the action and the end, is not always so direct 
and palpable as to strike the eye of every observer. 
The science of government is the most abstruse of all 
sciences; if, indeed, that can be called a science which 
has but few fixed principles, and practically consists 
in little more than the exercise of a sound discretion, 
applied to the exigencies of the state as they arise. 
It is the science of experiment. 

But if there is one maxim which necessarily rides 
over all others, in the practical application of govern- 
ment, it is, that the public functionaries must be left 
at liberty to exercise the powers which the people have 
intrusted to them. The interests and dignity of those 
who created them require the exertion of the powers 
indispensable to the attainment of the ends of their 
creation. Nor is a casual conflict with the rights of 
particular individuals any reason to be urged against 
the exercise of such powers. The wretch beneath the 
gallows may repine at the fate which awaits him, and 
yet it is no less certain that the laws under which he 
suffers were made for his security. The unreasonable 
murmurs of individuals against the restraints of 
society, have a direct tendency to produce that worst 
of all despotisms, which makes every individual the 
tyrant over his neighbor's rights. 

That "the safety of the people is the supreme law," 
not only comports with, but is indispensable to, the 
exercise of those powers in their pubic functionaries, 
without which that safety cannot be guarded. On this 
principle it is, that courts of justice are universally ac- 
knowledged to be vested, by their very creation, with 



— 161 



power to impose silence, respect, and decorum, in their 
presence, and submission to their lawful mandates, 
and, as a corollary to this proposition, to preserve 
themselves and their officers ■ from the approach and 
insults of pollution. 

It is true, that the courts of justice of the United 
States are vested, by express statute provision, with 
power to fine and imprison for contempts ; but it does 
not follow, from this circumstance, that they would not 
have exercised that power without the aid of the 
statute, or not in cases, if such should occur, to which 
such statute provision may not extend ; on the contrary, 
it is a legislative assertion of this right, as incident to 
a grant of judicial power, and can only be considered 
either as an instance of abundant caution, or a legisla- 
tive declaration, that the power of punishing for 
contempt shall not extend beyond its known and 
acknowledged limits of fine and imprisonment. 

But it is contended, that if this power in the House 
of Representatives is to be asserted on the plea of 
necessity, the ground is too broad, and the result too 
indefinite ; that the executive, and every coordinate, 
and even subordinate branch of the government, may 
resort to the same justification, and the whole assume 
to themselves, in the exercise of this power, the most 
tyrannical licentiousness. 

This is, unquestionably, an evil to be guarded 
against ; and if the doctrine may be pushed to that 
extent, it must be a bad doctrine, and is justly 

d enounced. 

But what is the alternative ? The argument obvi- 
ously leads to the total annihilation of the power of 
the House of Representatives to guard itself from con- 



21 



— 162 — 



tempts, and leaves it exposed to every indignity and 
interruption that rudeness, caprice, or even conspiracy, 
may meditate against it. This result is fraught with 
too much absurdity not to bring into doubt the sound- 
ness of any argument from which it is derived. That 
a deliberative assembly, clothed with the majesty of 
the people, and charged with the care of all that is 
dear to them; composed of the most distinguished 
citizens, selected and drawn together from every 
quarter of a great nation; whose deliberations are 
required by public opinion to be conducted under the 
eye of the public, and whose decisions must be clothed 
with all that sanctity which unlimited confidence in 
their wisdom and purity can inspire; that such an 
assembly should not possess the power to suppress 
rudeness, or repel insult, is a supposition too wild to 
be suggested. And, accordingly, to avoid the pressure 
of these considerations, it has been argued that the 
right of the respective houses to exclude from their 
presence, and their absolute control within their own 
walls, carry with them the right to punish contempts 
committed in their presence; (a) while the absolute 
legislative power given to Congress, within this district, 
enables them to provide by law against all other insults 
against which there is any necessity for providing. 

It is to be observed, that so far as the issue of this 
cause is implicated, this argument yields all right of 
the plaintiff in error to a decision in his favor ; for 
non constat, from the pleadings, but that this warrant 



(a) It is denied, in the present inquiry, that the absolute control of the 
respective houses within their own walls carries with it any such power in the 
case supposed. 



163 



issued for an offense committed in the immediate 
presence of the house. 

Nor is it immaterial to notice what difficulties the 
negation of this right in the House of Representatives 
draws after it, when it is considered that the conces- 
sion of the power, if exercised within their walls, 
relinquishes the great grounds of the argument, to 
wit : the want of an express grant, and the unrestricted 
and undefined nature of the power here set up. For 
why should the house be at liberty to exercise an 
ungranted, an unlimited, and undefined power within 
their walls, any more than without them? If the 
analogy with individual right and power be resorted 
to, it will reach no further than to exclusion, and it 
requires no exuberance of imagination to exhibit the 
ridiculous consequences which might result from such 
a restriction, imposed upon the conduct of a delibera- 
tive assembly. 

Nor would their situation be materially relieved by 
resorting to their legislative power within the district. 
That power may, indeed, be applied to many purposes, 
and was intended by the Constitution to extend to 
many purposes indispensable to the security and 
dignity of the General Government; but they are pur- 
poses of a more grave and general character than the 
offenses which may be denominated contempts, and 
which, from their very nature, admit of no precise 
definition. Judicial gravity will not admit of the 
illustrations which this remark would admit of. Its 
correctness is easily tested by pursuing, in imagination, 
a legislative attempt at defining the cases to which the 
epithet contempt might be reasonably applied. 

But although the offense be held undefinable, it is 



— 164 — 

justly contended that the punishment need not be 
indefinite. Nor is it so. 

We are now considering the extent to which the 
punishing power of Congress, by a legislative act, may 
be carried. On that subject, the bounds of their power 
are to be found in the provisions of the Constitution. 

The present question is, what is .the extent of the 
'punishing power which the deliberative assemblies of 
the Union may assume and exercise on the principle 
of self-preservation f 

Analogy, and the nature of the case, furnish the 
answer: "The least power adequate to the end pro- 
posed;" which is the power of imprisonment. It may, 
at first view, and from the history of the practice of 
our legislative bodies, be thought to extend to other 
inflictions. But every other will be found to be mere 
commutation for confinement; since commitment alone 
is the alternative where the individual proves contu- 
macious. And even to the duration of imprisonment 
a period is imposed by the nature of things, since the 
existence of the power that imprisons is indispensable 
to its continuance ; and although the legislative power 
continues perpetual, the legislative body ceases to exist 
on the moment of its adjournment or periodical dis- 
solution. It follows that imprisionment must termi- 
nate with that adjournment. 

This view of the subject necessarily sets bounds to 
the exercise of a caprice which has sometimes dis- 
graced deliberative assemblies, when under the influ- 
ence of strong passions, or wicked leaders, but the in- 
stances of which have long since remained on record 
only as historical facts, not as precedents for imitation. 
In the present fixed and settled state of English in- 



— 165 — 

stitutions, there is no more danger of their being re- 
vived, probably, than in our own. 

But the American legislative bodies have never 
possessed, or pretended to the omnipotence which con- 
stitutes the leading feature in the legislative assembly 
of Great Britain, and which may have led occasionally 
to the exercise of caprice, under the specious appear- 
ance of merited resentment. 

If it be inquired, what security is there, that with 
an officer avowing himself devoted to their will, the 
House of Representatives will confine its punishing 
power to the limits of imprisonment, and not push it 
to the infliction of corporal punishment, or even death, 
and exercise it in cases affecting the liberty of speech, 
and of the press ? the reply is to be found in the con- 
sideration that the Constitution was formed in and for 
an advanced state of society, and rests at every point 
on received opinions and fixed ideas. It is not a new 
creation, but a combination of existing materials, 
whose properties and attributes were familiarly under- 
stood, and had been determined by reiterated experi- 
ments. It is not, therefore, reasoning upon things as 
they are, to suppose that any deliberative assembly, 
constituted under it, would ever assert any other rights 
and powers than those which had been established 
by long practice, and conceded by public opinion. 
Melancholy, also, would be that state of distrust which 
rests not a hope upon a moral influence. The most 
absolute tyranny could not subsist where men could 
not be trusted with power because they might abuse it, 
much less a government which has no other basis than 
the same morals, moderation, and good sense of those 
who compose it. Unreasonable jealousies not only 



— 166 — 

blight the pleasures, but dissolve the very texture of 
society. 

But it is argued that the inference, if any, arising 
under the Constitution, is against the exercise of the 
powers here asserted by the House of Representatives; 
that the express grant of power to punish their 
members respectively, and to expel them, by the 
application of a familiar maxim, raises an implication 
against the power to punish any other than their own 
members. 

This argument proves too much ; for its direct appli- 
cation would lead to the annihilation of almost every 
power of Congress. To enforce its laws upon any 
subject without the sanction of punishment is obviously 
impossible. Yet there is an express grant of power to 
punish in one class of cases, and one only ; and all the 
punishing power exercised by Congress in any cases, 
except those which relate to piracy and offences against 
the laws of nations, is derived from implication, (a) 
Nor did the idea ever occur to any one, that the 
express grant in one class of cases repelled the 
assumption of the punishing power in any other. 

The truth is, that the exercise of the powers given 
over their own members, was of such a delicate nature, 
that a constitutional provision became necessary to 
assert or communicate it. Constituted as that body is, 
of the delegates of confederated States, some such 

(a) The power of Congress to enact penal laws which are necessary and 
proper for carrying into execution any power of this government, does not 
arise by implication. It is given in the same terms with all other powers of 
Congress. That is to say, it is given expressly. It is found in the last clause 
of section 8, Article 1. In using this express power, Congress is not called 
upon to imply anything ; it has only to ascertain that the thing proposed 
comes within the descriptive terms, " necessary and proper," etc. 



— 167 — 

provision was necessary to guard against their mutual 
jealousy, since every proceeding against a representa- 
tive would indirectly affect the honor or interests of 
the State which sent him. 

In reply to the suggestion that, on this same 
foundation of necessity, might be raised a superstruc- 
ture of implied powers in the executive, and every 
other department, and even ministerial officers of the 
government, it would be sufficient to observe, that 
neither analogy nor precedent would support the 
assertion of such powers in any other than a legislative 
or judicial body. Even corruption anywhere else 
would not contaminate the source of political life. In 
the retirement of the cabinet, it is not expected that 
the executive can be approached by indignity or 
insult ; nor can it ever be necessary to the executive, 
or any other department, to hold a public deliberative 
assembly. These are not arguments ; they are visions 
which mar the enjoyment of actual blessings with the 
attack or feint of the harpies of imagination. 

As to the minor points made in this case, it is only 
necessary to observe, that there is nothing on the face 
of this record from which it can appear on what 
evidence this warrant was issued. And we are not to 
presume that the House of Kepresentatives would have 
issued it without duly establishing the fact charged 
upon the individual. And, as to the distance to which 
the process might reach, it is very clear that there 
exists no reason for confining its operation to the limits 
of the District of Columbia ; after passing these limits, 
we know no bounds that can be prescribed to its range 
but those of the United States. And why should it 
be restricted at other boundaries ? Such are the limits 






— 168 



of the legislating powers of that body; and the 
inhabitant of Louisiana or Maine may as probably 
charge them with bribery and corruption, or attempt, 
by letter, to induce the commission of either, as the 
inhabitant of any other section of the Union. If the 
inconvenience be urged, the reply is obvious ; there is 
no difficulty in observing that respectful deportment 
which will render all apprehension chimerical. 
Judgment affirmed. 



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